District Court New South Wales

• Medium Neutral Citation: Habib v Radio 2UE Sydney Pty Ltd & Anor (No 4) [2012] NSWDC 12
• Hearing dates: 17, 18, 19 October, 23 November 2011
• Decision date: 24 February 2012
• Before: Levy SC DCJ

Decision

See orders at paragraphs [440] to [444].

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - defamation - trial following jury verdict pursuant to s 7A of Defamation Act 1974 - radio broadcasts - whether defences of truth, contextual truth and comment established; DAMAGES - assessment of compensatory and aggravated damages
• Legislation Cited: Defamation Act 1974, s 7A; Evidence Act 1995, s 60; Uniform Civil Procedure Rules 2005, r 31.23(1), Sch 7
• Cases Cited: Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183; Branson v Bower [2001] EMLR 32; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Broome v Cassell & Co Ltd [1972] AC 1027; Carson v John Fairfax & Sons Ltd [1993] HC 31; (1993) 178 CLR 44; Cheng & Anor v Tse Wai Chun [2000] 3 HKLRD 418; Clark v Ainsworth (1996) 40 NSWLR 463; Clarke v Norton [1910] VLR 494; Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; Edwards v Bell (1824) 1 Bing 403; Goodrich Aerospace Pty Limited v Arsic (2006) NSWCA 187; Habib v Radio 2UE Pty Limited [2008] NSWDC 59; Habib v Radio 2UE Pty Limited [2009] NSWCA 231; Harbour Radio Pty Ltd v John Tingle [2001] NSWCA 194; Hepburn v TCN Channel Nine Pty Limited [1984] 1 NSWLR 386; Jackson v John Fairfax & Sons Pty Ltd [1981] 1 NSWLR 36; John Fairfax & Sons Pty Ltd v Jones [2004] NSWCA 205; John Fairfax & Sons Pty Ltd v O'Shane [2005] NSWCA 164; Keays v Guardian Newspapers Ltd & Ors [2003] EWHC 1565; Marsland v Andjelic (No 2) (1993) 32 NSWLR 649; Mason v Demasi [2009] NSWCA 227; McQuire v Western Morning News [1903] 2 KB 100; NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340; Scott v Sampson (1882) 8 QBD 491; Silken v Beaverbrook [1958] 1 WLR 743; Turcu v News Group Newspapers Limited [2005] EWHC 799; Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497; Turner v MGM Pictures Ltd [1950] 1 AllER 449; Whalan v Kogarah Municipal Council [2007] NSWCA 5
• Texts Cited: Gatley on Libel and Slander, 10th ed
• Category: Principal judgment
• Parties: Mamdouh Habib (Plaintiff); Radio 2UE Sydney Pty Ltd (First defendant); Macquarie Radio Network Pty Ltd (Second defendant)
• Representation: Mr CA Evatt with Mr R Rasmussen (Plaintiff); Mr BR McClintock SC with Ms G Rubagotti (Defendants); Demir Legal (Plaintiff); Banki Haddock Fiora (Defendants)
• File Number(s): 2006/294377

Judgment

Table of Contents

A	INTRODUCTION
	Nature of the plaintiff's case	[1]
	The defendants	[2]
	Three broadcasts on 18 August 2005	[3] - [4]
	Subsequent broadcast on 3 May 2011	[5] - [6]
	Plaintiff's imputations	[7]
	Pleaded defences and defence imputations	[8] - [10]
	Reply by plaintiff claiming malice	[11]
	Procedural history	[12] - [13]
	Issues	[14]
	Non-issues	[15] - [16]
	Credit attack on Mr Habib	[17] - [32]
	Summary of findings	[33] - [38]
	Array of evidence	[39] - [42]
B	FACTUAL MATTERS
	Facts	[43] - [287]
	The initial 3 broadcasts	[44]
	Mr Habib's personal background	[45]
	Work history and prior receipt of Centrelink payments	[46]
	Mr Habib's travel to Pakistan in 2001	[48]
	Kidnapping in Pakistan and rendition in captivity to Guantanamo Bay	[49] - [52]
	Alleged $11,000 Centrelink dispute	[53] - [56]
	Events following Mr Habib's return to Australia in January 2005	[57] - [59]
	Mr Habib's condition of health on his return to Australia	[60] - [72]
	Medical assessments of Mr Habib in early February 2005	[73] - [87]
	Interview on 60 Minutes programme broadcast on 13 February 2005	[88] - [93]
	Chronology of Mr Habib's dealings with Centrelink in 2005	[94] - [185]
	Mr Habib's participation in the City to Surf race on 14 August 2005	[186] - [190]
	Publication of Daily Telegraph article on 18 August 2005	[191] - [192]
	The three broadcasts on 18 August 2005	[193]
	Estimated listening audience for the broadcasts	[194] - [199]
	Assault and stabbing incident involving Mr Habib on 21 August 2005	[200] - [241]
	Effects of the broadcasts on Mr Habib	[242] - [267]
	Centrelink payments to Mr Habib 2006-2009	[268] - [273]
	Centrelink notation concerning lodgement of income tax returns 1999 to 2005	[274] - [287]
C	FINDINGS ON DEFENCES
	Defence of qualified privilege	[289]
	Defence of truth	[290] - [308]
	Defence of contextual truth	[309] - [337]
	Contextual truth of the Laws imputation	[316] - [323]
	Contextual truth of the Price imputation	[324] - [330]
	Contextual truth of the Hadley imputation	[331] - [336]
	Conclusions concerning contextual imputations	[337]
	Defence of comment	[338] - [369]
	Overview of defence of comment	[339] - [358]
	Comment defence and the Laws imputation	[359] - [361]
	Comment defence and the Price imputation	[362] - [365]
	Comment defence and the Hadley imputation	[366] - [368]
	Conclusions on claimed defence of comment	[369]
	Consideration of reply by plaintiff	[370] - [378]
D	DAMAGES ASSESSMENT
	General compensatory damages	[380] - [396]
	Mitigation	[397] - [409]
	Aggravated damages	[410] - [430]
	Interest	[431] - [437]
E	DISPOSITION, COSTS & ORDERS
	Disposition	[438]
	Costs	[439]
	Orders	[440] - [444]

A. INTRODUCTION

Nature of the plaintiff's case

1 The now repealed Defamation Act 1974 applies to these proceedings, in which Mr Mamdouh Habib claims damages for defamation, including aggravated damages. This follows a determination by a jury that Mr Habib had been defamed by the defendants: s 7A(3). The defamatory remarks, which concerned the honesty of Mr Habib's dealings with Centrelink over his entitlement to payment of social security benefits, were broadcast by the defendants on two radio stations on 18 August 2005. This final part of the proceedings is concerned with determining whether the pleaded defences have been established, and if not, the amount of damages to be awarded to Mr Habib: s 7(4).

The defendants

2 Mr Habib's claims are made against the first defendant, Radio 2UE Sydney Pty Ltd, concerning broadcast remarks made by Mr John Laws and Mr Steve Price on radio station 2UE, and against the second defendant, Macquarie Radio Network Pty Ltd, concerning broadcast remarks by Mr Ray Hadley on radio station 2GB. The respective defendants employed these persons as radio commentators.

Three broadcasts on 18 August 2005

3 Mr Habib's claim relates to three separate radio broadcasts on 18 August 2005. Transcripts of each of those broadcasts were tendered in the proceedings as Exhibit "G". Those transcripts are reproduced as Appendices A , B and C to these reasons. The sound recordings of those broadcasts were tendered as Exhibit "L".

4 The broadcasts in question speak for themselves, and there is no need to quote from them in detail, or to paraphrase them, other than to observe that a jury has found that Mr Habib had been defamed by those remarks with regard to the imputations I will shortly identify. It is sufficient to say of the broadcasts, as was fairly conceded by Mr McClintock SC, on behalf of the defendants, that the comments made by Mr Laws, Mr Price and Mr Hadley had ridiculed Mr Habib and were " not nice ", and in the case of Mr Hadley's comments, they were " not terribly edifying as a piece of public debate ... far from it ".

Subsequent broadcast on 3 May 2011

5 Mr Habib made an additional claim for aggravated damages against the second defendant over a further broadcast by Mr Hadley on 3 May 2011. Mr Habib claimed the second defendant had on that occasion engaged him in an interview and had broadcast that interview in the knowledge that the hearing date for these proceedings had already been fixed to commence on 17 October 2011.

6 Mr Habib claimed that in the 3 May 2011 broadcast, Mr Hadley had harassed him into agreeing to be interviewed, and had twisted his words, and had sought to improperly engage him in discussions to talk about his case, in the hope that the subject matter discussed in that further broadcast might assist Mr Hadley in defending himself in the present case. A transcript of that 3 May 2011 broadcast is reproduced as Appendix D to these reasons. The sound recording of that broadcast was tendered as Exhibit "H".

Plaintiff's imputations

7 The jury found in favour of Mr Habib in respect of 3 of the 50 imputations that he claimed were defamatory of him. Those 3 imputations are set out in Mr Habib's Second Further Amended Statement of Claim filed on 8 April 2011 [SFASOC], and are reproduced as follows:

(a) Mr Habib is dishonest because he is trying to get himself a disability pension even though he is so fit he can run in the City to Surf and beat 40,000 people;

[Broadcast by Mr Laws - Paragraph 3(c)(ii) of the SFASOC relating to the first defendant];

(b) Mr Habib is attempting to deceive Centrelink by seeking a disability pension when he is not disabled;

[Broadcast by Mr Price - Paragraph 5(a)(i) of the SFASOC relating to the first defendant];

(c) Mr Habib is dishonest because he is trying to get his hands on a disability pension to which he is not entitled.

[Broadcast by Mr Hadley - Paragraph 7 of the SFASOC relating to the second defendant].

Pleaded defences and defence imputations

8 The defendants pleaded defences of truth, contextual truth, comment and qualified privilege in relation to each of the imputations accepted by the jury. Ultimately, the pleaded defence of qualified privilege was not argued.

9 The defendants also relied upon the following contextual truth imputations that they have pleaded against Mr Habib:

(a) Mr Habib is dishonest because he tried to get his hands on a disability pension to which he was not entitled.

(b) Mr Habib is a dishonest welfare cheat.

10 On behalf of Mr Habib it was argued that the truth, contextual truth and comment defences were not available to the defendants because all the imputations concerning alleged dishonesty were framed in the present tense at the time of the broadcast, and were unsupported by the chronological facts.

Reply by plaintiff claiming malice

11 Mr Habib filed a Reply in the proceedings, alleging malice on the part of the second defendant in respect of the 3 May 2011 broadcast by Mr Hadley. As a consequence, Mr Habib claimed an additional entitlement to an award of aggravated damages against the second defendant in respect of that broadcast.

Procedural history

12 The more recent procedural history of the proceedings was that the jury trial took place on 28, 29 and 30 March 2011. The trial of the present proceedings, which took place on 17, 18, 19, 20 October and 23 November 2011, followed by written submissions, was concerned with determining whether the defendants had made out any of their pleaded defences, and if not, the appropriate measure of Mr Habib's entitlement to damages.

13 The long interval of time between publication and in bringing this matter to finality was due to the initial dismissal of the proceedings by another judge of this court as an abuse of process, and the subsequent reversal of that decision on appeal: Habib v Radio 2UE Pty Limited [2008] NSWDC 59; Habib v Radio 2UE Pty Limited [2009] NSWCA 231, the subsequent refusal of the defendants' special leave application in the High Court of Australia on 23 April 2010, the timing of the jury trial which concluded on 30 March 2011, and the many subsequent interlocutory disputes that followed, and which preceded the final hearing that concluded on 23 November 2011.

Issues

14 The resolution of the issues arising from the defences, which largely concerned the honesty and probity of Mr Habib's relationship with Centrelink, was in part dependent upon the analysis of Centrelink documents against the timeline of relevant events, and the credibility of the evidence given by Mr Habib in these proceedings, when assessed against the whole of the evidence.

Non-issues

15 In identifying the issues concerning Mr Habib's relationship with Centrelink, something has to be said about the parameters of the present proceedings. The original pleadings and the related imputations that Mr Habib had sought to sustain in the hearing before the jury raised many wide-ranging matters. The 50 original imputations relied upon by Mr Habib which went to the jury, concerned not only Mr Habib's honesty, and the probity of his dealings with Centrelink regarding his entitlement to a disability pension, but also raised issues as to whether Mr Habib had a disability, whether he was a terrorist, and whether he was involved in nefarious activities whilst he was in Pakistan and Afghanistan, amongst other things.

16 In the present context, it should be clearly understood that this case is concerned only with the imputations accepted by the jury, namely, those I have identified at paragraph [7](a), (b) and (c) above concerning the honesty and probity of Mr Habib's dealings with Centrelink, and the defendants' consequential contextual truth imputations that I have identified in paragraph [9](a) and (b) above, and the related damages issues that arise for consideration, including the factual matters that underpin those imputations.

Credit attack on Mr Habib

17 In cross-examination, the defendants sought to make a concerted attack on the credit and honesty of Mr Habib on a range of matters. Mr Habib vehemently denied the substance of the assertions that were put to him in the course of those attacks.

18 Before embarking on the attack on Mr Habib's credit, on behalf of the defendants, Mr McClintock SC made it clear that he would not be cross-examining Mr Habib on his involvement in events occurring between 2001 and 2005, which was the time when Mr Habib was detained in Pakistan and then in Guantanamo Bay, Cuba.

19 In this regard, Mr McClintock SC indicated that this case was only concerned with the plaintiff's activities in relation to Centrelink, and not anything else (T49.1-T49.10). The defendants took that stance since the claimed imputations that were rejected by the jury which concerned matters of alleged terrorism and the like, were considered to be irrelevant to the imputations that survived for consideration in this part of the proceedings.

20 In the context of Mr Habib's claims regarding injury to his reputation and hurt to his feelings, it is relevant to set out the substance of the credit attacks that the defendants sought to sustain against Mr Habib in the course of these proceedings. In the following paragraphs I have identified the principal topics and the transcript references in connection with those credit attacks.

21 When analysed, the defendants' attack on Mr Habib's credit fell into two broad categories, each of which comprised a number of further specific assertions. I shall refer to the first category as the Centrelink allegations, and the second category as those involving Mr Habib's general conduct and probity as a witness.

22 The critical Centrelink allegations, which in essence were reiterations of the same basic assertion of dishonesty on the part of Mr Habib, were as follows:

(a) being prepared to cheat in his Centrelink application because of an asserted grudge he held against the Government for having wronged him in the events surrounding his detention in Guantanamo Bay: T123.29 to T124.30;

(b) doing everything he could to avoid having to tell Centrelink about the payment of $140,000 from 60 Minutes, this being a payment for an interview given by Mr Habib to Nine Network Australia Pty Limited: T141.20 to T142.4; T146.40 to T146.50; T157.1 to T157.12;

(c) not being frank with Centrelink: T159.5; T164.6 to T164.36;

(d) knowingly intending to deceive Centrelink as to his entitlement to receive Centrelink benefits: T164.5 to T164.23; T165.24 to T165.28;

23 The critical allegations by which the defendants sought to attack Mr Habib's general conduct and probity as a witness, were as follows:

(a) being " a publicity hound " who sought to have his name in the paper and to appear on television: T77.42 to T77.50

(b) falsely stating that he had not claimed sickness benefits and a disability pension in 2005: T79.25 to T79.34; T86.26 to T86.29

(c) lying in claiming that he did not know that social security payments were means tested: T117.34

(d) lying about not knowing that the receipt of the sum of $140,000 would cause him to lose his entitlement to Centrelink benefits: T119.30 to T119.47; T135.6 to T135.30; T148.24 to T148.29;

(e) fabricating his account of, or exaggerating the extent of, his mental state in 2005: T137.31;

(f) fabricating his account of an assault upon himself and his wife on 21 August 2005 in order to assist him with the present claim: T68.11; T63.48;

(g) being " quite prepared to make absolutely outrageous and defamatory allegations about people " when it suited him to do so: T167.35 to T167.47;

(h) an unspecified assertion that he had deliberately overstated matters in relation to his claim for damages: T256.32 to T256.35;

24 The matters that I have cited above involve serious allegations concerning Mr Habib's character and honesty. When stating my findings of fact on these matters, I will refer to each of those areas of controversy in the context where they arise for consideration in the course of identifying my findings of fact in Section B of my reasons.

25 In addition to the matters outlined above, on behalf of the defendants, during cross-examination of Mr Habib, it was initially positively put to Mr Habib, and then not pressed when objected to, that he was a person who would be quite prepared to avoid paying tax if he thought he could get away with it (T127.49 toT128.1).

26 That withdrawn assertion plays no part in the consideration of Mr Habib's credit because the question was not pressed, and has no bearing on the assessment of damages even though it was a matter which added to Mr Habib's feelings of affront at the trial, an impression that clearly emerged from his evidence. On that latter matter, Mr Habib's evidence as to his tax obligations and related responses was at T125.37 to T126.6, and was as follows:

"Q. Mr Habib, did I hear you say a short time ago that you paid tax?

A. I do pay tax.

Q. Is that true evidence?

A. Excuse me?

Q. Is that true evidence?

A. Yes, what I say is truth.

Q. Mr Habib, you didn't put a tax return in from 1990 through to 2005, did you?

A. Excuse, this is funny. Is this a joke?

Q. Mr Habib, would you answer my question? You didn't put a tax return in from 1990 to 2005, did you?

A. Ask United States if they put it from me when I was in Guantanamo Bay or John Howard or Phillip ..[Not transcribable reference to the then Foreign Minister, Mr Ruddock]..

Q. Mr Habib, you weren't arrested until 2001, were you?

A. I was kidnapped in 2001, yes."

27 In his final submissions, in addition to some general credibility challenges concerning Mr Habib's veracity, Mr McClintock SC placed reliance on two principal credit challenges to the evidence of Mr Habib.

28 The first of those categories of challenge was that Mr Habib had tried to avoid disclosing to Centrelink the payment of $140,000 as an interview fee from the Nine Network Australia Pty Limited in order to " defer the evil day " on which that payment would affect or cancel his Centrelink benefits ["the Centrelink disclosure issue"].

29 The second category concerned a challenge to the credulity of Mr Habib's explanation concerning what was said by one of his assailants in an assault and stabbing incident involving him and his wife on 21 August 2005, following the three broadcasts on 18 August 2005. The essence of the substance of the latter challenge was the accusation that Mr Habib had deliberately fabricated his account of those events in an attempt to assist his position in this case ["the assault and stabbing fabrication issue"].

30 I have rejected the credit attack upon Mr Habib concerning the Centrelink disclosure issue for the reasons that appear between paragraphs [ 94 ] to [ 185 ] of these reasons. I have also rejected the credit attack upon Mr Habib on the assault and stabbing fabrication issue. My reasons for rejecting that attack appear between paragraphs [ 200 ] to [ 241 ] of these reasons.

31 In considering the attacks made to Mr Habib's credit, on the evidence adduced in these proceedings, I have concluded that overall, the defendants have failed to make good their attacks by which they asserted Mr Habib was dishonest in his dealings with Centrelink. When read as a whole, a proper contextual consideration of the documentary evidence and related facts that based those attacks, does not sustain the assertions made.

32 A submission was made on behalf of Mr Habib, that in the context of this case, he should be regarded as being a person of unblemished reputation, notwithstanding that a level of notoriety had been created around him as a result of his time spent in captivity overseas, and the events leading to those circumstances, in the sense of him having a public persona, but not as a person with a bad reputation. On the evidence it must be presumed that Mr Habib is a person of good reputation.

Summary of findings

33 Following my assessment of the evidence on the issue of the credibility of Mr Habib's testimony, I have concluded that he should be considered to be a person whose reputation has been adversely affected by the disparaging comments made about him in the radio broadcasts in question, to thousands of listeners, by Mr Laws, Mr Price and Mr Hadley.

34 For the reasons I have given, I have found that the defendants have failed to make out any of the defences they have pleaded.

35 I have therefore assessed Mr Habib's entitlement to general compensatory damages against the first defendant in respect of the broadcast by Mr Laws on 18 August 2005 in the sum of $70,000, and in respect of Mr Price's broadcast on 18 August 2005, in the sum of $25,000. I have assessed aggravated damages against the first defendant in the sum of $25,000. I have assessed pre-judgment interest on general compensatory damages against the first defendant in the sum of $24,776. This entitles Mr Habib to a judgment against the first defendant in the total amount of $144,776.

36 I have also therefore also assessed Mr Habib's entitlement to general compensatory damages against the second defendant in respect of the broadcast by Mr Hadley on 18 August 2005 in the sum of $25,000.

37 I have not assessed aggravated damages against the second defendant in respect of Mr Hadley's broadcast on 3 May 2011. I have assessed pre-judgment interest on general compensatory damages against the second defendant in the sum of $6520. Habib is entitled to a judgment against the second defendant in the total amount of $31,520.

38 The combined total of these respective judgments is $176,296.

Array of evidence

39 Before stating my findings of fact, I propose to shortly outline the array of evidence adduced in the proceedings.

40 Mr Habib gave oral evidence, as did his wife, Mrs Maha Habib, his daughter Miss Mariam Habib, and an acquaintance, Ms Simone White. The latter witness gave some evidence of Mr Habib's pre-broadcast reputation, as well as some evidence as to her observations on the effect the broadcasts had on him.

41 The exhibits tendered in Mr Habib's case were marked in the series "A" to "S". The exhibits tendered in the defendants' case were marked in the series "1" to "6". A schedule identifying those exhibits appears as Appendix E to these reasons.

42 Mr Laws, Mr Price and Mr Hadley were not called to give any evidence, and the defendants did not call any oral evidence in addition to the documents they tendered.

B. FACTUAL MATTERS

Facts

43 The factual evidence was in large part unchallenged. In the paragraphs that follow, I set out my findings of fact concerning the relevant chronological events. I have considered all of the exhibits and I have drawn upon them, as well as upon the oral evidence, for the purposes of identifying my findings of fact. Where these findings result from the resolution of factual controversy within the evidence, and where it was relevant to do so, I have identified the relevant controversy along with my reasons for the resolution of any such controversy.

The initial three broadcasts

44 The starting point for laying out the relevant factual background is the content of the initial three broadcasts in question since it was those matters that have led to these proceedings. The broadcasts of 18 August 2005 have already been identified in Appendices A , B and C to these reasons and require no further summary.

Mr Habib's personal background

45 Mr Habib's background is that he was born in Egypt in 1955. He left Egypt in 1974. He lived in Italy between 1974 and 1977. He migrated to Australia in 1982. He is an Australian citizen. His whereabouts between 1977 and 1982 was not explored in the evidence and no issue arises from this fact. He married in Australia. He and his wife, Mrs Maha Habib, have four children, presently ranging in ages from 11 years to 26 years.

Work history and prior receipt of Centrelink benefits

46 In the past, in Australia, Mr Habib had at various times operated a cleaning business, a coffee shop business and a security business. The precise details of these businesses were not explored in the evidence. It appears these businesses were conducted by him through a corporate structure. Mr Habib stated that at all times, he had paid any taxes that were due, and he had relied upon the advice of an accountant concerning the management of his financial affairs to ensure this was so. Mr Habib's businesses failed and this resulted in him suffering a depressive illness and then receiving Centrelink benefits. That evidence was not contradicted.

47 Between 1999 and 18 July 2001, Mr Habib, was in receipt of a disability support pension from Centrelink. In these proceedings, it was not suggested on behalf of the defendants, that Mr Habib had been in any way disentitled to receive that pension during that period.

Mr Habib's travel to Pakistan in 2001

48 On 29 July 2001, Mr Habib temporarily left Australia. In that trip he had travelled to Pakistan. Mr Habib's oral evidence concerning the purpose of that trip was that he wanted to explore work opportunities in a proposed cleaning business. An additional explanation recorded in a medical report referred to him seeking a more easily accessible and affordable overseas Islamic education for his children because of his straightened economic circumstances after being involved in a failed business undertaking in Australia. It was not suggested that any relevant credit issue turned on those matters, and they were not further explored in much detail in evidence.

Kidnapping in Pakistan and rendition in captivity to Guantanamo Bay

49 Mr Habib alleged that on or about 1 October 2001, whilst he was in Pakistan, he had been kidnapped by local police, and then later detained by US military authorities. He stated that after his resultant involuntary detention at other places en route, including in Egypt, he was transported to Guantanamo Bay, in Cuba, where he was held as a detainee until late January 2005.

50 The evidence records that in those events, Mr Habib had given an account of having been subjected to extreme torture whilst he had been held against his will in Pakistan, and in Egypt, and also whilst he was in Guantanamo Bay. Mr Habib believed that at a high level, the Australian Government had a hand in these events. That evidence was not contradicted in these proceedings. There was no suggested basis from within the evidence which required that Mr Habib's evidence on these matters be seriously questioned or rejected.

51 The details of Mr Habib's time in detention at Guantanamo Bay, including the reasons for his incarceration there, and the reasons and the circumstances of his release and ultimate return to Australia, were not challenged or explored through cross-examination of Mr Habib, or his wife, or the other witnesses.

52 For the reasons outlined by counsel for the defendants, and to which I have already referred, the critical comments that Mr Laws had made about Mr Habib relating to his time overseas, including whilst he was in detention, were not put to Mr Habib in cross-examination.

Alleged $11,000 dispute with Centrelink

53 There was a suggestion made in the broadcast by Mr Laws, and in the Daily Telegraph article on which that broadcast was based, that Mr Habib had at some stage been in dispute with Centrelink over an alleged $11,000 pension overpayment to his family whilst he was in Pakistan and Guantanamo Bay, and in which it was said Mr Habib had been required to repay that sum to Centrelink.

54 It should be noted that there was no evidence called in these proceedings to support the assertion of any such disputed overpayment by Centrelink. I therefore consider that such matters must be seen as being unsubstantiated and unproven, especially since in circumstances where, in the weeks before the trial of these proceedings, in the context of several interlocutory listings for procedural directions, Mr Habib gave the defendants his written authority and consent for Centrelink to provide the defendants with unconditional access to copies of his Centrelink files. I was informed that such access in fact occurred. The circumstances of that access were that if Mr Habib had not given his consent for access to his Centrelink files, the defendants would have had a compelling case for these proceedings to be stayed and the hearing dates vacated. That prospect had been ventilated at a number of interlocutory pre-trial hearings.

55 In those circumstances, especially where the defendants made it clear in these proceedings, that Mr Habib's credibility was very much in issue, the inference is open that the Centrelink records did not substantiate the assertion of a dispute over an alleged $11,000 overpayment. I expect that, in the absence of other explanations, if any such material had existed within the Centrelink files, it would have been tendered by the defendants in these proceedings as this was a matter that could have had a bearing on Mr Habib's credit as a witness. Perhaps the issue was left unaddressed because the defendants regarded it as being irrelevant to the issues to be decided in the proceedings (T27.18). That is the basis upon which I shall proceed.

56 The Centrelink payments schedule shows that between 1 August 2001 and 12 May 2002, fortnightly Centrelink payments were made to Mr Habib at a time he was overseas, including in detention. The amounts paid as listed on that schedule, do not total $11,000, and are not identified as over-payments on that schedule: Exhibit "C".

Events following Mr Habib's return to Australia in January 2005

57 On about 28 or 29 January 2005, Mr Habib was returned to Australia after his release from detention in Guantanamo Bay. It is not relevant to delve into the detail of the circumstances of that detention. In these proceedings no evidence was called concerning any charges that were laid against him or concerning which laws, if any, had been infringed so as to result in his detention. Without evidence, matters of that kind cannot form part of the consideration in this case.

58 On Mr Habib's return to Australia, some sections of the community welcomed him. As evidence for this, a large piece of coloured cardboard, Exhibit "N", containing numerous handwritten personal messages from well-wishers, was tendered in the case for Mr Habib. This card was put forward as providing some evidence of Mr Habib's pre-broadcast good reputation in the community following his return to Sydney from Guantanamo Bay.

59 Although Mr Habib had been welcomed home by some sections of the community, it is a matter of notoriety not requiring evidence, that other sections of the community were not welcoming of him. This was so even to the extent that some sections of his own Muslim community in Sydney had shunned him: Exhibit "4".

Mr Habib's condition of health on his return to Australia

60 It is necessary to consider the evidence tendered concerning Mr Habib's state of health, including his mental health, on his return to Australia in January 2005 in order to evaluate the credit attack upon him, by which it was put that he was " making up " or had fabricated his account of his mental state in February 2005, an allegation which Mr Habib vehemently denied.

61 In his evidence, Mr Habib stated that he was in a poor state of health on his return to Australia.

62 The uncontroverted medical evidence is that on his return to Australia, Mr Habib was in a poor state of physical and psychological health. This was in the form of the unchallenged evidence of Professor Christopher Tennant, an eminent consultant psychiatrist, whose report on such issues, dated 14 February 2005, was addressed to Mr Habib's then solicitor, Mr Stephen Hopper: Exhibit "J".

63 Mrs Habib also gave evidence of her husband's poor physical and emotional state of health on his return to Australia. She was referred to photographs taken of him both before and after his time at Guantanamo Bay. In my view, those photographs, which were copied from Mr Habib's published biography, provided some degree of support for Mrs Habib's evidence: Exhibit "M".

64 Mrs Habib described her husband as appearing very thin on his return home. One of the photographs in Exhibit "M" showed a shirtless Mr Habib taken a few hours after his return to Australia. When that photograph was compared to an earlier family photograph from within the same biography, which was captioned " Happy times ", and bearing in mind the obvious cautions that need to be observed when interpreting photographic evidence, nevertheless, this appears to confirm that at some time beforehand, probably before he left Australia in 2001, Mr Habib had been much more well nourished in appearance. That matter was not the subject of contest.

65 On the matter of Mr Habib's condition of health on his return to Australia, I have extracted a portion of Mrs Habib's evidence between T185.24 to T186.5, where she relevantly stated:

"Q. What was your husband's mental state in those early days?

A. He wasn't with it. He didn't believe that he was there when he first came.

...

Q. How did he appear to you about being aware of things?

A. He thought - he thought himself that he was - it was another injection that he was given. He didn't actually accept that - he was trying to accept that I'm his wife and our kids is his kids and actually when he first came he was really welcome with a lot - lots of people and made him feel comfortable that he is welcome to Australia back home. And I've got a card from people who has actually signed it and gave it to him when they came, yes.

...

Q. --his own mental state, did he appear to you to be aware of what was going on?

A. No."

66 On the same subject, an extract of the evidence of Mr Habib appearing between T125.20 to T125.27 as to his condition of health on his return to Australia, was as follows:

"... when I come back from Guantanamo Bay I was sick, I was very ill. I'm not able to know what's going on. Take me about nine months to know even my family that's true is my family because I was under the drugs and I was really very ill. And what happened in my house in this time like a film or movie and whatever they doing I let them do it as a person - a handicap person or a mental issue person. But I was try to - I communicate with they what around me, that's exactly what happened ..."

67 It was not made clear in the evidence as to what was meant by the expression " I was under the drugs ". On analysis of the evidence, the possibilities are that on his return to Australia he was prescribed and was taking the medication referred to in the psychiatric report of Professor Christopher Tennant, or he was, possibly, still affected by drugs that could have been given to him whilst he was overseas. Professor Tennant had adverted to this possibility in his report by his use of the words " amongst others " to refer to a number of methods of torture. Mrs Habib's reference to " injection " at T186.5 could refer to this, however the issue was left unclarified in the evidence.

68 The state of the evidence does not reasonably permit the conclusion that Mr Habib was tortured by the use of drugs administered by injection or otherwise, or that he was still under the influence or the effects of those drugs on his return to Australia.

69 In view of such uncertainty, I consider a literal interpretation that Mr Habib was affected by the drugs that had been prescribed for him on his return to Australia is a more likely interpretation of the evidence, rather than the more speculative interpretation that he was still under the effect of drugs that had been given to him during torture as any evidence for the latter conclusion was not tendered.

70 I am unable to determine on the evidence tendered, that the drugs Mr Habib said he took in order to stay awake on the flight back to Australia, had any lasting effects in the days and weeks after his return, beyond any usual measure of fatigue that an individual might experience as a temporary after-effect of long distance plane travel.

71 There is no sound basis upon which the above evidence of Mr Habib's state of health on his return to Australia, as was described by him and his wife, should be doubted or rejected. Accordingly, I accept the evidence of Mr and Mrs Habib and Professor Tennant, whose opinions I shall set out, as reflecting a true account of Mr Habib's state of health as at January and February 2005.

Medical assessments of Mr Habib in early February 2005

72 In early February 2005, Mr Habib underwent a psychiatric examination and assessment by Professor Tennant. In these proceedings, the defendants did not seek to challenge the independence or the objectivity of the observations and conclusions made by Professor Tennant following that assessment, either through argument or through the calling of contrary evidence. The conclusions expressed by Professor Tennant were based upon his examination and assessment of Mr Habib about 5 days after Mr Habib had returned to Australia from detention in Guantanamo Bay.

73 For reasons that will shortly become apparent, the professional observations of Professor Tennant, when viewed alongside another tendered medical certificate from Mr Habib's general practitioner, assumes some significant importance in these proceedings in connection with some credit issues relating to Mr Habib's mental state in 2005, and as to whether he sought to exaggerate or fabricate his evidence on that issue, as was put to him in cross-examination. I will return to that issue shortly.

74 The following extract from Exhibit J provides the basis and the essence of the conclusions reached by Professor Tennant following his assessment of Mr Habib:

"...

There appears to be no family history of psychiatric illness, ...

...

His schooling, was largely uneventful with him completing secondary school at the age of 17. He was not interested in his schoolwork, did not do his homework but was well liked by both students and teachers he reports. He had a good friendship network and remains in contact with a large number of people from his childhood. There appears to be no identifiable psychological or conduct problems in his childhood and adolescence.

After leaving school he spent four years working in the Middle East and Europe in a variety of largely casual jobs. He worked in Syria, Italy and in Jordan, in service work, construction work , and as a assistant horse trainer.

He arrived in Australia at the age of 22 years and spent two years in factory work in two years working as a cleaner. Over 12 years built-up his own cleaning business. Not long after arriving in Australia, he met and married his wife who is originally from Lebanon. They appear to have had a happy marriage over the years and have four healthy children ranging in age from three to their early twenties. He has two sons and two daughters. Since his return he seems to be comfortably reestablishing his role within the family and his wife and children of course are exceptionally pleased to have him back.

Work History

He ran his successful cleaning business and at various times had from 15 to 30 employees. In addition he had a small security business and restaurant and at this time he considered himself to be successful and happy; and to this point he had no history of psychological disorder.

Around 1995 and 1996 he began to have significant problems with his major cleaning contract which was with the Department of Defense (sic) Housing. In essence what emerged was he lost; his cleaning contract and decided to challenge this, what he believed to be, an unjust decision. He challenged the decision through various authorities including the Ombudsman, the Anti Discrimination Board amongst others and in the courts. After prolonged proceedings and legal costs which require (sic) him to sell his house and resulted in his businesses failing he lost the final judgment.

In 1996 he developed his first significant depressive disorder and was treated with Prozac and Aurorix at various times. His symptoms at that time were those of a significant major depressive disorder. His working life was effectively destroyed and he remained unable to work for two years and was initially on Sickness Benefits and then the Disability Support Pension.

As their financial resources were significantly diminishing, the family contemplated moving back to an Islamic country where they could live more cheaply, in a country of sympathetic religious views and so obtain an easily accessible Islamic education for the children, matters which were very important to them. The family made two visits to Pakistan and Egypt after 1997 with the purpose both of examining the possibility of resettlement, finding work but also the visiting Mr. Habib's parents in Egypt, which they did. In the middle of 2001 Mr. Habib traveled (sic) to Singapore, Pakistan, and Egypt and the Emirates in order to again visit his family and seek out the possibility of work in these areas. It was at this time he was arrested just outside Karachi in Pakistan.

His detention

He remained in detention in Pakistan for approximately three weeks and was visited by an Australian Consular official and he reports was rude and unsympathetic to his plight. He was flown to Egypt from Pakistan where again, at the airport, an Australian Consular official was present. He remained in detention and was tortured in Egypt for some six months before being transferred to Cuba where he was interned, interrogated and tortured for three years.

The details of his torture both in the US and in Egypt have been documented elsewhere and reported to his legal advisers but in essence they included beatings, factitious drownings, various forms of electrocution including of his genitals, foreign bodies in his urethra, sensory deprivation, sleep deprivation and threats of return to Egypt, amongst others. Not surprisingly as a result of this he has significant psychiatric morbidities. The psychiatric morbidities were observed by medical offices (sic) in Cuba on his arrival and included PTSD and depression. Surprisingly the same report notes no such disorder on his departure from Cuba to Australia. The latter is of course an erroneous judgment, and the medical report is unsigned, not surprisingly, as it is quite unprofessional.

His Current Mental Conditions

Mr. Habib describes significant anxiety symptoms which are present for much of his waking life but are also exacerbated significantly by other stimuli. He describes tremulousness and shaking of his body, tachycardia, tightness in his chest and stomach, breathlessness and the inability to catch his breath, dizziness and poor memory. He desires to be left alone and is avoidant of people. He describes continuous memories of his unpleasant experiences and associated with this, accentuation of his anxiety symptoms he denies any particular nightmares. In addition particular stimuli provoke panic attacks similar to that described above. Examples; of such stimuli include the ring tone of his son's mobile phone (which is in the sound of an alarm), watching a video tape of his parents from Egypt, and severe anxiety when listening to news reports of the torture of a kitten recently, in Sydney.

On the basis of the symptoms Mr. Habib suffers from Post Traumatic Stress Disorder with Criteria A being fulfilled by his various torture experiences. He also meets Criteria B 1, 4, 5, Criteria C 3, 4, 5, 7, and Criterion D, 1, 3, 5.

In addition he has a major depressive syndrome in that his mood is low, he cries frequently, particularly in relation to memories or mention of his torture, he feels psychomotor retarded has poor concentration, major sleep disturbance, is irritable and sees little future for himself and gains little pleasure from any activity other than his pleasure at his release. He has major preoccupation with his past horrific experiences.

It is clear Mr. Habib will require two forms of relatively intensive treatment including medication and psychological intervention such as cognitive behavior (sic) therapy in order to reduce his suffering. I will assist in arranging for his treatment. I'm happy to assist in any other way that you think be useful."

75 Shortly after Professor Tennant's assessment of Mr Habib, on 15 February 2005, Mr Habib was also seen by Dr Mustapha Alameddin, a general practitioner. On that day, Dr Alameddin issued Mr Habib with a medical certificate incorporated in a Centrelink form: Exhibit "3". In that certificate, Dr Alameddin identified Mr Habib as having an anxiety disorder, depression, and generalised body aching. Dr Alameddin indicated that Mr Habib's symptoms of " fatigue, tiredness, weakness, headache, hearing buzz feeling " were of longstanding origin. Dr Alameddin noted that the prognosis for those symptoms was uncertain.

76 The medical opinions to which I have referred in the preceding paragraphs, and their underlying assumptions within the summarised history which provides the basis for the opinions, have a threefold importance.

77 First, they remain unchallenged and uncontradicted, and may therefore be safely assumed to be admissible and factually correct, as they do not appear to be either inherently or glaringly improbable or incorrect on their face, hearsay notwithstanding: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 per Heydon JA at [70] . Secondly, they are corroborative of the evidence given by Mrs Habib as to her description of her husband's condition of health upon his return to Australia in late January 2005. Thirdly, they provide a basis within the evidence for drawing inferences as to Mr Habib's likely medical condition immediately upon his return to Australia, and more particularly, on 31 January 2005 when he signed his application for Centrelink benefits, as well as in the weeks that followed until those benefits were conceded.

78 Before leaving my consideration of the medical evidence, I should observe that none of the opinions tendered were accompanied by an attestation of the Expert Witness Code required by UCPR r 31.23(1), Sch 7 or the previously applicable Sch K required by the former Supreme Court Rules which applied at the time the opinions were signed. In my view, in this case, nothing turns on that fact. It is plain from the date of Professor Tennant's report, that his report could not have been prepared for the purpose of these proceedings.

79 As the actual purpose of the report of Professor Tennant was not explored, I do not see anything of significance arising from the absence of reference in the report to either Sch 7 or the formerly applicable Sch K. Similarly, Dr Alameddin's report was obviously not prepared for the purposes of litigation, and no reference to Sch K or its equivalent was required in the circumstances. Dr Alameddin was simply filling out a Centrelink form that required him to state his opinion and the matters upon which that opinion was based.

80 No objection or argument was directed at the absence of an acknowledgment of the Expert Witness Code in the case of either of these reports. I consider the absence of such an acknowledgment to be of no consequence in this instance. The position may well have been different if the opinions under consideration had been prepared for this litigation. If that had been established as a fact, this most probably would have led to objections to the tender of the opinions.

81 I now turn to a consideration of the credit attack on Mr Habib in which it was asserted that in giving his evidence, he was making up or fabricating his account of his mental state in 2005.

82 Following my consideration of the evidence as a whole, I have concluded that the preponderance of the evidence, both lay and medical, requires that I reject that attack as unfounded. I have come to this conclusion for the reasons that follow.

83 First , Mr Habib's denial of the assertion of fabrication was forthrightly spontaneous, and seemed sincere, as was his denial that he had given a lucid account of himself on the 60 Minutes interview. Whilst Mr Habib's answers to questions in evidence, of themselves, were not necessarily conclusive on the issue of the credibility of his testimony, his denials were not inconsistent with his evidence in chief, where he had stated he was very ill at that time and was unable to know what was going on. In that context, I took the latter expression to be his manner of speaking rather than a literal statement. I did not consider the brevity of his denials to be a factor to be weighed against the acceptance of Mr Habib's evidence especially since the cross-examiner did not follow the issue up with further questions or other evidence to a degree of particularity that would be persuasive, and which might displace the acceptance of sworn testimony which was of itself not glaringly improbable or inherently incorrect.

84 Secondly , Mr Habib's account of his state of health on his return to Australia was supported by the evidence of Mrs Habib. Her evidence on this point remained largely unchallenged through cross-examination. The questions asked of Mrs Habib in cross-examination seeking to interpret posed photographs of an apparently smiling Mr Habib on being reunited with his family is hardly capable of being properly seen as a basis for challenge to the credibility of the testimony of either Mr or Mrs Habib. Mrs Habib did not agree with the proposition that on the televised 60 Minutes interview her husband appeared to be lucid and capable of explaining what had happened to him. Neither a taped copy of that interview, nor its transcription, featured in the evidence in these proceedings. As a result there was no available means by which to assess the correctness or otherwise of Mrs Habib's denial, which on its face, was not glaringly improbable so as to require rejection. In those circumstances, no good and sufficient reason has been suggested as to why the evidence of Mrs Habib on this issue should be disbelieved: Whalan v Kogarah Municipal Council [2007] NSWCA 5, at [41] .

85 Thirdly , the evidence comprising the unchallenged opinions of Professor Tennant and Dr Alameddin, both of whom saw and assessed Mr Habib in February 2005, provides a compelling basis upon which to reject the proposition underlying the credit attack under present consideration. The clear description that comes from this evidence is that Mr Habib's significant mental problems at the time these doctors saw him in February 2005 was of longstanding origin. Professor Tennant was of the opinion that the psychological problems that beset Mr Habib at the time of his report were likely to continue for some time, even with treatment. In view of the nature of the credit attack under present consideration, which was limited to February 2005, at this point I need not undertake a consideration of this issue beyond that time frame. It is reasonably clear from Professor Tennant's unchallenged opinion, which I accept, that Mr Habib had significant mental health problems, at the very least, throughout February 2005, as he claimed, and contrary to the asserted challenge to his credit on that issue.

86 In my view, each of the above factors, alone and in combination, require that I reject the criticisms of Mr Habib to the effect that he was making up or was fabricating his evidence on his mental state in February 2005.

87 This conclusion has some relevance to the assessment of the evidence concerning Mr Habib's dealings with Centrelink in January and February 2005. Before moving on to the Centrelink issues, it is necessary to review the matters surrounding Mr Habib's interview on the 60 Minutes programme, as that event, and its monetary consequences, gave rise to the Centrelink issues which are at the centre of these proceedings.

Interview on 60 Minutes programme broadcast on 13 February 2005

88 One of the focal points in these proceedings was Mr Habib's 2005 dealings with the producers of the television programme 60 Minutes and Nine Network Australia Pty Limited. Those dealings had led to these proceedings in that they had a relevant impact upon Mr Habib's existing relationship, entitlements and dealings with Centrelink, and led to further media attention upon Mr Habib and his circumstances. It was those dealings that led to the imputations that have arisen in these proceedings.

89 In the background to those events, there is no dispute that the events surrounding Mr Habib's detention at Guantanamo Bay, and the circumstances of his return to Australia, had attracted significant public notoriety, media attention and public interest. It is natural that this would have been so, and this was a matter that was undoubtedly influential in Mr Habib ultimately publishing his " ghost written " biography in 2010, and which apparently also covered those events. I take the opportunity to here record that I have not been provided with, nor have I read that biography, except for the extracted portions that were tendered in evidence: Exhibit "M" and Exhibit "4".

90 In the context of media interest in his story, in the period from 28 January 2005 to 3 February 2005, if not in the days beforehand, Mr Habib and his family, through their former solicitor Mr Hopper, had negotiated a payment of $140,000 from the Nine Network to Mrs Habib. The consideration for this payment was that Mr Habib was required to give the producers of the 60 Minutes programme an exclusive interview, and he was required to also make members of his family available for that purpose. It seems that there had been a media " bidding war " between the proprietors of the television stations Channel 7 and Channel 9 for the right to televise Mr Habib's story.

91 On 3 February 2005 an agreement was completed and signed by Mr and Mrs Habib, and by Mr John Westacott on behalf of Nine Network Australia Pty Limited, giving Channel 9 the right to telecast an exclusive interview with Mr Habib. Since the timing and the terms of that agreement have assumed some importance in these proceedings, I set out the terms of that agreement in full, as follows. The emboldened words appear as underlined text in the original Exhibit:

" EXCLUSIVE INTERVIEW AGREEMENT

This letter confirms the arrangements for an exclusive interview with you by Nine Network Australia Pty Limited (Nine), on the following terms and conditions-

1. Nine proposes to interview you concerning your experiences about your apprehension and detention in Pakistan. Egypt, Afghanistan and Guantanamo Bay; your release and return to Australia; and related events (the Interview) for the purposes of broadcast on "Sixty Minutes'" (the Program).

2. In consideration of Nine's agreement to broadcast the interview on the Program, and the payment referred to below, you agree to

(a) make yourself and members of your family available at times and locations to be arranged with Nina for the recording of the Interview and other footage,

and

(b) provide Nine with any background information or other material which relates to the subject matter of the interview;

and

(c) undertake at ail times to fell the truth to the best of your knowledge, in the Interview with Nine

3. You agree that the interview will be exclusive to Nine and exclusive of any other interviews with television, radio, print or any other media which may be received anywhere in the world, until 14 days after the interview has been broadcast by Nine. You undertake that neither you nor your immediate family will make any statements, or provide any material, to any other media concerning the subject matter of either the Interview or the Program, until 14 days after the Interview has been broadcast by Nine.

Notwithstanding, the exclusivity provisions outlined in the above paragraph, Nine acknowledges that the exclusivity period in relation to any interview which you conduct with the New York Times will extend only until 8.30pm, Australian eastern daylight saving time, on the day of the broadcast, being at the completion of the program.

4. Nine's exclusive rights under paragraph 3 do not apply if Nine has not broadcast the Interview within 21 days of the date of this letter.

5. You agree that all right, title and interest, including copyright, in the Program (including any footage of you recorded by Nine or obtained as part of the Interview] will be owned exclusively by Nine, and that Nine will be entitled to exploit that right, title and interest as it sees fit.

However, the profits derived from any overseas sales of the interview will be shared on an equal basis (50/50) between Maha Habib and Nine.

6. In consideration of the rights granted to Nine under this agreement, Nine will pay Maha Habib the sum of $140.000 to be paid into the bank account referred to in Attachment A within 7 working days following the broadcast of the Interview. You agree that no payment will be made unless:

(a) the interview takes place, and is recorded and broadcast; and

(b) you strictly comply with the terms of this agreement, including the requirements of paragraph 3.

7. I f Nine is required to withhold amounts on account of any form of tax, you agree to such

withholding.

8. The parties agree not to disclose any of the terms of this agreement (except to their legal or financial advisers, or as required by law).

Please acknowledge your agreement to the above by signing where indicated below."

[Emphasis is as appears]

92 In the events that followed, Mr Habib honoured his part of the bargain that had been struck by that agreement. Between 6 and 12 February 2005, Mr Habib, his wife and his children went to the home of a 60 Minutes programme producer on Scotland Island in Sydney, for the purpose of filming the 60 Minutes interview. There, he was secreted away from other media access, and the interview in question was recorded. That interview was later televised on the 60 Minutes programme that went to air on Sunday 13 February 2005. In return, Nine Network Australia Pty Limited honoured its part of the agreement, and on 16 February 2005, the sum of $140,000 was deposited into Mrs Habib's account with Arab Bank Australia.

93 These dates will assume some importance when it comes to a consideration of the defences of truth and comment relied upon in these proceedings. Before leaving the matter of the 60 Minutes interview I take the opportunity to record that I have not seen that 60 Minutes interview, either at the time of the original broadcast, or since, and a copy of it was not tendered in evidence in these proceedings.

Chronology of Mr Habib's dealings with Centrelink in 2005

94 The 31 January 2005 date is a significant one for these proceedings because this was the first occasion on which Mr Habib had any dealings with Centrelink on his return to Australia in 2005.

95 On that day, two officers from Centrelink had attended at the home of Mr and Mrs Habib to discuss his Centrelink entitlements. In the presence of Mr Habib's then solicitor, Mr Stephen Hopper, and Mr Habib's wife, Mrs Maha Habib, those officers assisted Mr Habib by completing some forms to enable a claim for Centrelink benefits to be processed.

96 Those forms, and Mr Habib's dealings with Centrelink that followed, are at the heart of these proceedings: Exhibits "A" and "B".

97 The unchallenged evidence was that it was Mrs Habib who handled all the relevant Centrelink documentation, forms and correspondence.

98 The first relevant form was an application for disability payments: Exhibit "A". The second such form was a questionnaire requiring the disclosure of income and assets: Exhibit "B".

99 The unchallenged evidence is that the Centrelink officers who attended the home of Mr and Mrs Habib assisted Mr Habib by filling in these forms. That evidence is confirmed by the answer to question M2 in Exhibit "A", which records that fact.

100 Unless otherwise stated, the following chronological account of Mr Habib's dealings with Centrelink is unchallenged and uncontradicted. It is necessary and relevant to set those matters out in some detail for the purposes of considering the defences relied upon by the defendants, especially the allegations of dishonesty and welfare cheating.

101 After the two initial Centrelink forms were signed in the presence of the Centrelink officials, Mr Habib said one of those officials returned, accompanied by another Centrelink official as there was an apparent mistake as to which form had been signed by Mr Habib and further forms were required to be completed. Mrs Habib also stated that there were two visits by Centrelink officials on 31 January 2005 (T195.2). At this second visit to Mr Habib's home on 31 January 2005, it was stated that a Newstart Allowance form for unemployment assistance was signed and then taken away by the Centrelink manager (T12.1 to T12.44).

102 The evidence was left unclear as to which order Exhibits "A" and "B" were signed. They were both dated 31 January 2005. In any event, one such form was for unemployment assistance, and the other was for a disability pension.

103 In Exhibit "B", Mr Habib disclosed his assets at the time as comprising a 1993 motor vehicle, some household effects with an estimated value of $5,000 and a fifty per cent share of total deposits of $180 held in two Commonwealth Bank accounts.

104 In these proceedings, the defendants placed significant reliance on the following declaration which was acknowledged by Mr and Mrs Habib, and which I have extracted from Exhibit "B":

"I declare that:

the information provided in this form is complete and correct.

I understand that:

giving false and misleading information is a serious offence.

Centrelink can make relevant enquiries to ensure I receive correct entitlements.

I must notify Centrelink of any changes to this information within 14 days of the change(s) occurring."

[Emphasis added by defendant's submissions]

105 The defendant pointed out, correctly in my view, that the above declaration, and the obligation to provide information of changes of circumstances, continued to have effect for so long as Mr Habib's Centrelink application, or receipt of Centrelink benefits, remained current.

106 On behalf of the defendants, Mr McClintock SC argued that all the defendants had to do in order to defeat Mr Habib's present claim was to prove that Mr Habib had signed the application form for Centrelink benefits, Exhibit "A", and to view that fact alongside the undisputed chronological events that occurred along the timeline of Mr Habib's dealings with Centrelink. It was submitted this was all that was required without regard to whether Mr Habib had brought his mind to the application which was ultimately dealt with by Centrelink. It was argued that this was because the truth of those matters is the relevant matter for the defences of truth and comment. I shall consider those defences in due course.

107 The parties were at issue on the subject of the significance of the forms to the defences relied upon. On behalf of Mr Habib, it was argued that his mental state at the time he signed the application was also of some significance to the analysis of those events (T241.50 to T242.25).

108 At paragraphs [73] to [87], I have already referred to the evidence of Mr Habib concerning his mental state on his return to Australia. There is ample evidence that he was significantly psychologically affected. Having regard to the already cited and unchallenged opinion of Professor Tennant, I conclude that Mr Habib was undoubtedly seriously affected and mentally disturbed by his experiences, as outlined in the report of Professor Tennant.

109 However, allowing full force to the opinion of Professor Tennant, I nevertheless consider that the evidence adduced in this case does not permit a finding that Mr Habib was so mentally affected as a result of his experiences, that he was psychologically incapable of appreciating what was being done for him at the time with regard to the Centrelink application for benefits.

110 Accordingly, I find that Mr Habib must have been aware of the significance and the implications of placing his signature onto that application form and the related forms for social security benefits, just as he must have been aware of the implications of the signing of the contract with Nine Network Australia Pty Limited concerning the 60 Minutes interview.

111 In these proceedings the defendants acknowledged that at the time Mr Habib signed the Centrelink forms, he was without doubt legally entitled to seek and obtain the Disability Support Pension from Centrelink. It is clear from the evidence that Centrelink was also satisfied that this was so, and on 1 February 2005, Centrelink approved that pension, at which time a pension payment of $228.86 was made to Mr Habib: Exhibit "1", p 23.

112 In that regard, on behalf of the defendants it was clearly stated that it was not part of the defence case that Mr Habib was not entitled to a disability pension on the basis of the medical condition he had at that time. That concession went on to acknowledge that this was not surprising considering where Mr Habib had been for the previous 4 years, where a person of extraordinary fortitude might have found those circumstances hard to bear (T242.8 to T242.20).

113 The defendant tendered 2 bundles of Centrelink materials, which largely comprised printouts of on-line computerised records of copies of correspondence that Centrelink had sent to Mr Habib in relation to his benefit entitlements. Those bundles were business records which were admissible as evidence of Mr Habib's dealings with Centrelink and they were admitted into evidence: Exhibits "1" and "2".

114 On reading those records I am satisfied that the contents represent, in data form, the copies of the correspondence that were sent to Mr Habib by Centrelink. Similarly, I am satisfied, and there is no reason to doubt, that the file notes accurately record the substance of the dealings Mr Habib and his family had with officers of Centrelink on the occasions that record entries in Exhibits "1" and "2" were made of such events.

115 Given the imputations of dishonest dealings with Centrelink, and the defendants' pleas of truth and comment, it becomes necessary to analyse the Centrelink material in chronological detail before determining whether the defences have been made out. The relevant portions of that material are summarised as follows.

116 A schedule of the various benefit payments made to Mr Habib by Centrelink between 1999 and 2006 was tendered: Exhibit "5". The contents of that schedule were not entirely self-explanatory.

117 The schedule of Centrelink payments shows that Mr Habib first received a Disability Support Pension from Centrelink between 9 July 1999 and 7 May 2002. The latter part of that period had overlapped with part of the period that Mr Habib was in Guantanamo Bay. The payments to Mr Habib are shown on the schedule to have apparently ceased on 7 May 2002 until they resumed with payment for the period commencing on 31 January 2005.

118 On 31 January 2005, the Centrelink records were annotated with the entry " BTR Arrears ". That entry remains unexplained and in the absence of an explanation, nothing turns upon it.

119 On 31 January 2005, consistent with a claim for benefits having been made by Mr Habib, or made on his behalf, as was put, Centrelink sent him a letter confirming his intention to make a claim for payment of Centrelink benefits: Exhibit "2", p 23. On the same date, Centrelink sent Mr Habib a notification in which the following extract of a reporting requirement was stated:

"This is an information notice given under the social security law.

YOU MUST TELL US IF ANY OF THESE THINGS HAPPEN OR IS LIKELY TO HAPPEN

...

you and your partner receive a lump sum amount of money or one-off payment from any source."

120 In submissions the defendants referred to the above form of notice as a reporting notice, and I shall adopt that description for convenient reference to this and equivalent notices sent to Mr and Mrs Habib at various later times. A copy of the terms of that reporting notice is found in Exhibit "2" at p 20.

121 The reporting notice obliged Mr Habib to advise Centrelink within 14 days of events or circumstances that affected his payment entitlement: Exhibit "2", p 19.

122 A controversy has arisen in the proceedings over the interpretation to be placed on the requirements of the reporting notice in the sense of identifying the circumstances that triggered an obligation on Mr Habib to provide Centrelink with information on the happening of certain events.

123 In the context of the evidence in this case, and the matter of the payment to Mrs Habib of the amount of $140,000 by Nine Network Australia Pty Limited, I consider it to be plain that the reporting notice requiring Mr Habib to inform Centrelink of the likelihood of payment of a lump sum only arose for compliance when all pre-conditions that rendered the possibility of payment were known to have been fulfilled so as to create the circumstances of a payment to be " likely ".

124 I consider that the payment in question could not reasonably be considered to be " likely " in this context unless there was an established entitlement to it, where it was only a matter of agreed time to pass before the payment was to be made, and that nothing else had to occur to make the money due and payable. Until that was established, the proposed payment must be seen as a possibility only, and could not be reasonably characterised as being " likely " for notification purposes. I shall return to this question in due course in considering the defences.

125 On 1 February 2005, Centrelink paid Mr Habib an amount of $228.86. That amount represented a payment for a Newstart Allowance for the period 31 January 2005 to 8 March 2005: Exhibit "2", p 22. There is no dispute that a Newstart Allowance was for the provision of financial support from Centrelink whilst an applicant was looking for work. Given the opinions of Professor Tennant and Dr Alameddin concerning Mr Habib's state of health at that time, it is difficult to see what work Mr Habib could realistically have looked for at around that time. In any event, the defendants have not argued any disentitlement to those payments on medical criteria.

126 Two days later, on 3 February 2005, the agreement between Mr and Mrs Habib and Nine Network Australia Pty Limited was signed. At that time there was no evidence as to when the proposed 60 Minutes interview was scheduled to take place or was to be broadcast, if at all.

127 In my view, as at 3 February 2005, the obligation on Mr Habib to advise Centrelink of the possible future payment of $140,000 for the 60 Minutes interview payment, according to the agreement, had not yet arisen because the conditions precedent for such notification had not yet been fulfilled so as to enable that anticipated payment to be properly characterised as being " likely to happen ". As neither the interview nor the broadcast had yet occurred, I consider that any talk of a payment being due under the terms of the signed agreement Exhibit "E" for the purposes of notifying Centrelink, was premature, and could not in the circumstances be properly considered to be a " likely " change of circumstances requiring notification to Centrelink at that time.

128 In the early days of February 2005, Mr Habib was assessed by Professor Tennant, whose report provides insight into Mr Habib's mental state at around this time. No evidence was called concerning Mr Habib's mental state at the time the producer of the 60 Minutes programme had Mr Habib and his family stay at his home on Scotland Island between 6 February 2005 and 12 February 2005. However, when regard is had to the certificate of Dr Alameddin dated 15 February 2005, it is more probable than not, given the relatively short interval of time involved, that Mr Habib's mental state, as seen by Professor Tennant in early February 2005, would have remained the same or similar when filming for the 60 Minutes programme was being undertaken.

129 On the evening of Sunday 13 February 2005 the 60 Minutes interview with Mr Habib was broadcast on Channel 9 television.

130 In my view, once the 60 Minutes interview had been broadcast, in accordance with the requirements of the Centrelink reporting notice, it was certainly arguable that an obligation could have arisen for Mr Habib to notify Centrelink that it was likely that either he or his partner, Mrs Habib, would in due course receive a payment of a lump sum from Nine Network Australia Pty Limited, provided that Mr Habib continued to observe the conditions to which he had agreed as a pre-condition for payment. However, on that view, and at that point, the information as to the proviso was equally important to the information about the possibility of payment in terms of whether it was " likely " to happen.

131 There is little room for doubt that on 13 February 2005 Mr Habib must have been aware that the effect of his agreement with the producers of the 60 Minutes programme provided for payment of $140,000 to be made within 7 working days following the broadcast of the interview, namely by Tuesday 22 February 2005, provided also that he continued to strictly comply with the further requirements of paragraph 3 of his agreement with Nine Network Australia Pty Limited: Exhibit "E", clause 6(b). That provision required that he continue to refrain from any other media contact in the exclusivity period.

132 In Mr Habib's circumstances, the prospect of his wife receiving $140,000 within 7 days was undoubtedly a powerful incentive on Mr Habib to fulfil the remaining requirement for non-contact with other media for that sum to be paid. At that point, Mr Habib's awareness of those circumstances at that time is a relevant matter for consideration. I therefore consider that as at the evening of 13 February 2005, Mr Habib knew, just as any reasonable person in his position and circumstances would have known, there was a relevant change " likely " to occur to his circumstances. The question of whether that change at that time triggered the need for Centrelink to be notified of this likely change within 14 days of the broadcast remains an open and arguable one.

133 As the agreement with Nine Network Australia Pty Limited provided for Mrs Habib to receive the payment of $140,000, in my view, on the evening of Sunday 13 February 2005, the payment contemplated by the agreement was a more " likely " occurrence than it was immediately before the broadcast, but at that time, that emergent likelihood was not of a character that required notification to Centrelink because Mr and Mrs Habib still had to successfully refrain from contact with other media during the exclusivity period before Mrs Habib became entitled to the " likely " payment. It should be observed at this point that there had been a " bidding war " for media access to Mr Habib. There is little room for doubt that there was media interest in his story at that time. It is possible that Mr Habib may not have been able to avoid media contact in that period because of the media attention on him at around that time. In the context of this case, those circumstances have to be viewed prospectively and not in hindsight.

134 The non-contact with other media requirement was applicable until the expiry of 14 days after the broadcast, namely, 27 February 2005, even if payment were to have occurred before 27 February 2005.

135 That position also remained the case until the actual time when either Mr or Mrs Habib became aware that the payment of $140,000 had actually been made. I shall return to this point shortly in determining what could reasonably be understood to be the last compliance date for Mr Habib to inform Centrelink of the likelihood or fact of a payment of the kind under consideration here.

136 On construing the agreement Exhibit "E", on an objective view, I consider its meaning was that once the broadcast of the 60 Minutes programme had occurred, Mrs Habib was to receive the payment of $140,000 on or before 22 February 2005, which was within 7 days of the broadcast, provided the Habib family refrain from other media contact in the prescribed period.

137 Notwithstanding that provision, early payment was made on 16 February 2005. Once that payment had been made, and once the fact of payment was known to Mr Habib, or Mrs Habib for that matter, as she was handling the Centrelink correspondence, there is no room for doubt that such knowledge triggered the obligation to report the fact of payment to Centrelink.

138 The question arises as to when was the latest date by which Mr Habib was required to actually report to Centrelink the fact of the likely payment of $140,000. The starting point of that enquiry, must necessarily be the question of when did Mr and Mrs Habib become aware of the fact of payment. In my view, the 14 day notification period for compliance with the reporting notification requirement did not commence to run until such knowledge was acquired, on 27 February 2005, whichever of those events occurred first.

139 On this question there is no direct evidence, which compels a finding that either Mr or Mrs Habib actually knew on 17 February 2005, that the payment of $140,000 had been made the previous day. Nor is there evidence which necessarily requires or compels the drawing of an inference to the same effect. There was no relevant interrogatory or admission, nor was there any other form of admission that addressed this issue of the timing of the knowledge that the payment had been made. The argument to the contrary is an opportunistic one, that relies on a retrospective analysis of the events after they had unfolded in order to seek to impute knowledge to Mr or Mrs Habib. However, absent from the argument is the requisite evidence that would necessarily or reasonably impute knowledge on 17 February 2005, of the time of payment of $140,000 on 16 February 2005.

140 In contrast, I consider that a prospective analysis of the circumstances is required, especially where a dishonest motive is sought to be imputed to Mr Habib. The relevant enquiry is whether there was any evidence tendered that either shows or tends to show that either Mr or Mrs Habib actually knew, on 17 February 2005, that the sum of $140,000 had in fact been paid into Mrs Habib's bank account on 16 February 2005.

141 Generally, persons in the straightened financial circumstances that I infer had at that time affected the Habib family, may have had a keen interest in maintaining some degree of vigilance or enquiry about whether and when payment had been made, or obtaining urgent confirmation from the receiving bank, or from the payer, that the agreed payment had in fact been paid on time.

142 However, the process of drawing inferences of that kind must be tempered with the knowledge that the payer was entitled under the agreement to delay the payment until as late as 22 February 2005. There is no evidence which suggests that either Mr or Mrs Habib had been led to believe, on reasonable grounds not involving unwarranted speculation, that payment might be made before the date due under the agreement. No questions were directed at the state of knowledge of Mr and Mrs Habib as to whether the payment was expected to be made earlier than on the last due date, and if so, when.

143 The plain fact remains that it remained within the discretion of Nine Network Australia Pty Limited to decide as to which date, and at what time, the payment was to be made. There is no evidence that either Mr or Mrs Habib knew that the payment was likely to be made earlier than the due date of 22 February 2005. In my view, on the state of the evidence, it is speculative to argue that Mr and Mrs Habib would have been aware, on either 16 or 17 February 2005, that the sum of $140,000 had been received from Nine Network Australia Pty Limited. A conclusion to the contrary, on the evidence adduced, is unwarranted.

144 My finding on these events is that as at 13 February 2005, and until the money was due to be paid on 22 February 2005, whilst Mr and Mrs Habib must have known that the payment of that lump sum of $140,000 was both possible and imminent, any payment before 22 February 2005 was at the discretion of Nine Network Australia Pty Limited, and it was also dependent on Mr and Mrs Habib continuing to refrain from speaking with other or rival media organisations before the payment was actually made. Even after the fact of payment, non-media contact had to be maintained until 27 February 2005, otherwise the money was repayable.

145 If Mr Habib had failed to honour that requirement, Nine Network Australia Pty Limited could have legitimately, and without difficulty, withheld payment, and payment could not have been enforced by either Mr or Mrs Habib unless and until all the agreed preconditions had been met. Therefore, whether or not the payment was " likely " depended upon Mr Habib continuing to refrain from contact with the other media organisations, from the evening of 13 February 2005 until 22 February 2005, or until the payer at its discretion, opted to pay the $140,000 at an earlier date, and that the fact of the payment actually became known to the Habibs.

146 Notwithstanding the arguments to the contrary put by the defendants on this issue, on the evidence adduced, I am unable to conclude that either Mr or Mrs Habib knew, on 17 February 2005, and more particularly, at the time Centrelink officers visited their home on 17 February 2005, that the sum of $140,000 had been paid into Mrs Habib's bank account on 16 February 2005.

147 As the reporting notice required Mr Habib to notify Centrelink of a likely happening that was notifiable, if the Habibs had known payment had been made on 16 February 2005, the fact of that change in circumstances became notifiable to Centrelink within 14 days of that likelihood becoming known, namely by 2 March 2005. Accordingly, even on that standard, I consider that Mr Habib could not reasonably be said to have been in breach of any notification obligation either before or on 17 February 2005.

148 In the meantime, in the midst of those events, on Tuesday 15 February 2005, Mr Habib attended upon Dr Alameddin and obtained a medical certificate from him for Centrelink purposes. It was not made clear whether or not this attendance on Dr Alameddin was as a result of an earlier appointment. After lodgement, the ensuing certificate from Dr Alameddin was accepted by Centrelink on 17 February 2005: Exhibit "1", p 21. There is no evidence that reasonably permits a finding that the obtaining of that certificate and forwarding it to Centrelink, was either contrary to an entitlement to do so at that time, or was done so with a dishonest intention on the part of Mr Habib.

149 Also in the midst of these events, on 15 February 2005, Centrelink sent Mr Habib a letter that included another reporting notice: Exhibit "2", pp 15-16. On 17 February 2005 Centrelink yet again sent another such reporting notice to Mr Habib: Exhibit "2", p 12.

150 The evidence does not make it clear as to why these recurrent reporting notices had been generated in such a relatively short space of time. Whilst it is quite possible Centrelink had by 15 February 2005 become aware of Mr Habib's appearance on the 60 Minutes programme, that is not the only interpretation available, as repeated despatch and receipt of computer generated correspondence is not an unknown occurrence. This is not a matter upon which I will speculate. On the other hand, it may have been a standard Centrelink practice to follow that course. There is simply no evidence to explain this point. Nevertheless, I am prepared to infer, in favour of the defendants, that those notices were sent to Mr Habib to remind him of his reporting obligations because it had most probably been assumed by Centrelink, that the 60 Minutes interview would result in a relevant payment.

151 In any event, by 17 February 2005, and still well within the currency of the running time of the 14 days notification period from 13 February 2005 concerning the obligation to report, Centrelink had become aware of the fact of the 60 Minutes broadcast which featured the interview with Mr Habib. Of course that awareness did not relieve Mr Habib of his own independent obligation to provide to Centrelink the details of the monetary arrangements associated with that interview, and any likely change to his circumstances.

152 On 17 February 2005, some Centrelink officials attended at the home of Mr and Mrs Habib and interviewed him about the non-disclosure by him and his wife to Centrelink, of the details of any payment arising from the 60 Minutes programme.

153 Whilst on an initial examination of those events, that visit seemed somewhat peremptory in the circumstances, where the obligation to report remained current and had not yet expired, and was not due to expire for nearly a further 2 weeks, the evidence does not permit a finding beyond the fact that Centrelink officials, as trustees of public funds, took such steps that they considered to have been appropriate, to ensure Mr Habib's awareness of the need to comply with the notification provisions within the regulatory framework of Centrelink.

154 At that time, those Centrelink representatives provided Mr Habib with a questionnaire which required him, within 14 days from that new date, namely, to 3 March 2005, to provide information relating to his entitlement to claim Centrelink benefits: Exhibit "C". This had the practical effect of extending the period of the earlier reporting notice by a further day. The material parts of the 17 February 2005 letter from Centrelink were as follows:

"The purpose of this letter is to gather information to help us make the right decision about your Centrelink payments.

Please answer the questions on the attached pages and return it to this office, signed and dated, within 14 days after this letter is given to you or your Newstart Allowance may be suspended. This is an information notice given under the social security law.

When you have returned this questionnaire further enquiries may need to be made to confirm your situation."

155 The questions that were annexed to Exhibit "C" were not in a standard form. They comprised 14 tailored questions that were targeted at obtaining information or confirmation from Mr Habib concerning his specific circumstances.

156 I will shortly return to these questions, but in the meantime it should be observed that there was no evidence, such as for example, oral evidence from the Centrelink officials concerned, or answers to interrogatories directed to Mr Habib, which suggested that Mr Habib had been directly questioned on the fact of a notifiable payment either having been made, or when it was " likely " to occur.

157 Instead, the inference is to the contrary, because on 17 February 2005 the Centrelink officials had left the questionnaire at Mr Habib's home and had left it to Mr Habib to provide written responses to the information sought. There were no corresponding file note entries or notations with the Centrelink exhibits that indicated the detailed content of any discussions that had been held between Centrelink officials and Mr and Mrs Habib on that 17 February 2005 visit.

158 There is no evidence that on that 17 February 2005 visit, Mr Habib or anyone on his behalf and to his knowledge, withheld information from the Centrelink officials, deliberately, or dishonestly, or otherwise. In my view non-disclosure of a notifiable event within the 14 day period for notification, without more, does not necessarily equate with imputed dishonest withholding of information.

159 The evidence, which is unchallenged, is to the contrary. That evidence comes from Mrs Habib, who had assumed the task of managing the Centrelink dealings. She said she had told Centrelink of the likely payment in phone calls and had nothing to hide. That evidence was not contradicted.

160 On 18 February 2005, Centrelink also sent Mr Habib a further reporting notice: Exhibit "2", pp 9-10. That was the fourth such notice in the 18 days that had passed since the application for benefits had been lodged. Again, there was no direct explanation within the Centrelink file for the frequency of despatch of so many notices over such a relatively short space of time since 31 January 2005, however, in view of the visit by Centrelink officials the previous day, it is reasonable to assume that Centrelink officials had decided to press Mr Habib to provide the information that it needed to assess or reassess his entitlements to benefits.

161 Moving forward in the Centrelink chronology, pending receipt of any reports or notifications that might have been expected to have been forthcoming from Mr or Mrs Habib, it appears that Centrelink had made some enquiries and investigations of its own concerning Mr Habib's situation. In that regard, on 28 February 2005, the Centrelink records show that it had obtained a copy of the letter of agreement with Nine Network Australia Pty Limited which comprises Exhibit "E". That verification was obtained from Channel 9: Exhibit "1", p 20. On 1 March 2005, Centrelink had also obtained verification from Arab Bank Australia that a payment of $140,000 had in fact been deposited into Mrs Habib's bank account on 16 February 2005 Exhibit: "1", p 20.

162 It is clear from those events that Centrelink had embarked upon a course of investigating Mr Habib's circumstances and entitlements, which in the circumstances, was an entirely correct and proper course in the circumstances. There was no suggestion to the contrary.

163 The defendants argued that the date of 18 February 2005 was a significant one in the consideration of the question of Mr Habib's honesty with regard to his obligations to Centrelink, and therefore, the defences pleaded.

164 This is because the Centrelink records show that on 18 February 2005, contact was made with Centrelink either by Mr Habib or someone authorised on his behalf, seeking to change and extend Mr Habib's reporting period from 2 weeks to a less onerous 12 weeks. There is no evidence as to the time on 18 February 2005 when that request was made. That request was granted by Centrelink on the same date as it was made: Exhibit "1", p 20. Presumably, this was something that Mr Habib was entitled to ask for. If it were otherwise, it must be presumed that Centrelink would have rejected the application.

165 The defendants argued that Mr Habib had sought this extension in the reporting period so that he could " put off the evil day " when he had to advise Centrelink of the payment for the 60 Minutes interview. That submission will be revisited when dealing with the defences.

166 In the period from 18 February 2005 until 1 March 2005, there is no evidence of any written communications having taken place from or on behalf of Mr Habib to Centrelink.

167 The significance of the 1 March 2005 date was that this was the date on which Mr Habib completed his answers to the 17 February 2005 Centrelink questionnaire by signing that document, although in this retrospective analysis, there appears to be no evidence from within the provided copies of the Centrelink file as to the actual time or date on which, or the means by which, Centrelink had actually received the completed questionnaire.

168 It is clear from the terms of Mr Habib's 1 March 2005 answers to the Centrelink questionnaire, that he had adequately complied with his obligations that arose under the reporting notices and the questionnaire, to inform Centrelink of his changed circumstances.

169 The questions that Mr Habib was asked to address in that questionnaire, and his responses to those questions, are set out below:

"QUESTIONS	ANSWERS
1. On what date was your family home sold?	8/5/1997
2. At what price was this property sold?	$255,000 Apx
3. How were the funds received from the sale of this property disposed of? (Please provide a detailed breakdown including dates)	Bank loan & others 165211 Fund 89789
4. If this property was mortgaged please provide details of the financial institution that this mortgage was held with, including how much was paid to settle the mortgage upon sale of your property.	Loan from St. George Bank
5. You have previously notified Centrelink of your involvement in the operation of a cleaning business. When did your involvement in this business cease?	30/6/98
6. How did your involvement with this business cease? If this business was sold please provide details of the sale including dates and amounts.	Closed (Lost Contract)
7. In the Sydney Morning Herald dated 17 February 2005 your lawyer, Mr Stephen Hopper, indicates that you were the owner of a coffee shop. When did you commence ownership of this business? Please provide details of income you have earned from this business by financial year.	A Coffee shop (Business was purchased on 1/7/97 and sold on 30/10/98 Purchases (sic) price 20 000 Sales price 20 000
8. When did you sell this business?	30/10/98
9. Please provide details of the sale of this business, including how funds were disposed of and relevant dates.	Bank statement
10. Whilst in receipt of Centrelink payments have you ever been involved in the operation of any other business? If so, please provide details.	Yes See "7"
11. You recently appeared in an interview on the 60 Minutes television program. Did you receive any form of payment, or will you receive, for this appearance? If so, please provide details including amount and date of payment.	$140 000,-
12. Have you received, or will you receive, any other payments from any organisation relating to media interviews? If so, please provide details.	$5000,-
13. Have you received any other income, or payments, from any source whilst in receipt of Centrelink payments? If so, please provide details.	No
14. Have you held any other assets whilst in receipt of Centrelink payments? If so, please provide details."	No, Family car Vechiel.(sic)

170 In these proceedings no criticism was directed at the brevity of Mr Habib's answer to question 11. In one sense, the answer raises an ambiguity or at least identifies an inadequate answer, however, the basic information as to the amount of the payment was disclosed, even if the details of the date and the identity of the payee were not. This point did not feature in the arguments by the parties and I conclude nothing turns on the brief form of that answer.

171 On 1 March 2005, Centrelink obtained its own formal confirmation from Arab Bank Australia that the payment of $140,000 had in fact been made into Mrs Habib's account in question on 16 February 2005: Exhibit "1" p 20.

172 On the following day, 2 March 2005, Centrelink wrote to Mr Habib to inform him that his Newstart Allowance had been cancelled from 16 February 2005. The reason given by Centrelink for the cancellation was the receipt of the payment of $140,000, a fact which placed Mr and Mrs Habib's combined income above the allowable limit of eligibility for payment of the Newstart Allowance: Exhibit "2" pp 1 and 5.

173 The Centrelink records tendered do not disclose whether it was Mr Habib's 1 March 2005 answers to questions, or Centrelink's own 1 March 2005 confirmation of Arab Bank Australia having received payment of the sum of $140,000, that led to Mr Habib's benefits being cancelled.

174 That matter appears to be crucial to determining the reason why Centrelink acted to cancel Mr Habib's benefit payments. The matter remained unresolved on the evidence. I shall return to this point in my consideration of the defences.

175 An entry in the Centrelink records on 3 March 2005 in Exhibit "1", p 20 reveals that a representative of Centrelink telephoned Mr Habib on that day and told him that the lump sum received from the 60 Minutes interview would be considered to be income. At that time Mr Habib was advised he would receive written notification from Centrelink to that effect. At that time a notation was made in the Centrelink records to the effect that Mr Habib had asked that Centrelink official to speak to his solicitor, Mr Hopper. It is also noted that a Centrelink representative later spoke to Mr Hopper and had a conversation to the same effect. It is recorded within the Centrelink records that Mr Hopper had apparently disagreed with the stance indicated by Centrelink, and in response, Mr Hopper was informed of Mr Habib's appeal rights: Exhibit "1", p 20.

176 On 3 March 2005, Centrelink also wrote to Mr Habib advising him that the Disability Support Pension for the period between 31 January 2005 to 15 February 2005, and which was due to be paid to Mr Habib on 7 March 2005, had been cancelled: Exhibit "2", p 3. The reason given by Centrelink for that cancellation was that the combined income of Mr and Mrs Habib was above the allowable limit: Exhibit "2", p 3.

177 On 3 March 2005 Centrelink also wrote to Mr Habib and advised him that his sickness allowance and his Newstart Allowance had been cancelled: Exhibit "2", p 2.

178 On 4 March 2005, Centrelink made a determination that it would not waive the Newstart Allowance debt Mr Habib owed to Centrelink because it was considered that Mr Habib had failed to advise Centrelink of the payment of $140,000: Exhibit "1", pp 18-19. It is not clear, on the evidence as to whether that determination and explanation took into account Mr Habib's answers to questions on 1 March 2005.

179 On 4 March 2005, Centrelink wrote to Mr Habib seeking repayment of part of the Newstart allowance it had paid to him: Exhibit "D".

180 On 18 March 2005 Mr Hopper wrote to Centrelink on behalf of Mr Habib indicating that he would be submitting a written request seeking a review of the Centrelink decision regarding the assessment of income and the repayment of the debt: Exhibit "1", p 20.

181 On 4 April 2005 Centrelink issued a cash receipt to Mr Habib in the amount of $179.45: Exhibit "P". This was the amount that Mr Habib had been requested to repay, and had in fact repaid, to Centrelink following the re-assessment of his entitlements to benefits.

182 There is no evidence that after the repayment of the amount of $179.45 by Mr Habib on 4 April 2005, and as at the time of the 3 broadcasts on 18 August 2005, that Mr Habib had ever sought any further Centrelink benefits of any kind, or had any current or pending Centrelink applications. This is a matter of some importance to the consideration of the pleaded defences.

183 On 8 April 2005, Centrelink sent Mr Habib what was described as a second request for information in connection with his application for a disability support pension: Exhibit "1" p 18. There is no evidence that Mr Habib had either acted upon, or had replied to that letter. Nor is there any evidence after 4 April 2005, which was some 4 months before the broadcasts on 18 August 2005, that Mr Habib did anything to either re-lodge, re-activate or press his claim for benefits that was first initiated on 31 January 2005, but then cancelled on 3 March 2005, effective from 15 February 2005. That is also a matter that requires consideration in connection with the pleaded defences.

184 After the notations in the Centrelink records concerning the 8 April 2005 letter to Mr Habib, to which there is no evidence of any reply from Mr Habib, it appears from the Centrelink records that Mr Habib had no further dealings with Centrelink before the events of the broadcasts on 18 August 2005, some 4 months later.

185 In that period, there was an internal notation made in the Centrelink records in the form of an entry on 10 May 2005, which shows that a Centrelink officer had undertaken an internal review of Mr Habib's social security entitlements on that date: Exhibit "1", p 18. I will return to that record in connection with my consideration of Mr Habib's income tax returns. In the interim, it is sufficient to note that the review in question was an internal one, and did not involve any initiation or input from Mr Habib, and it did not in any way have the effect of reactivating his 31 January 2005 claim for benefits.

Mr Habib's participation in the City to Surf race on 14 August 2005

186 On Sunday 14 August 2005, Mr Habib participated in the annual Sydney City to Surf Race (T21.5). Mr Habib described his participation in that event by stating that he just made the time that was recorded and had finished ahead of some others, but a lot of people had run faster than him (T26.44 to T27.6). The reasons for his participation in that event was that it was recommended to him that he do so as physical activity was thought to be a form of therapy for his clinical depression.

187 Mrs Habib described how, in the 6 months between February and July 2005, her husband used to exercise by running and jogging with the encouragement and assistance of their eldest son in order to rehabilitate himself physically (T192.31 to T192.41). There is no evidence which suggests that any ability to run in the City to Surf event within 82 minutes is inconsistent with a legitimate claim for a disability pension on account of clinical depression. A commonsense analysis suggests the converse might be true, and that physical exercise might be of assistance in managing such depression.

188 There is no dispute that Mr Habib was clinically depressed at the time the application for Centrelink benefits was lodged on 31 January 2005 and by implication, that he was also subject to that condition of health until the time when his benefits were cancelled on 3 March 2005. At the very least, that was the position in January and February 2005 according to the objective assessments of Professor Tennant and Dr Alameddin. The evidence of Mr and Mrs Habib on this subject has already been cited at paragraphs [65] to [66] of these reasons. Mr Habib's unchallenged evidence was that he did not like to tell anyone about the matters to do with his illness but in that context, he acknowledged it was sometimes necessary to do so (T176.2).

189 Nothing that emerged from the evidence concerning Mr Habib's participation in the City to Surf event was necessarily indicative of an assertion that he was not entitled to Centrelink benefits, and the defendants did not seek to argue otherwise (T240.8 and T243.50 to T244.7)

190 At some uncertain time before 18 August 2005, and by means that did not precisely emerge from the evidence, but which can be assumed to have been an unauthorised disclosure, the details of Mr Habib's past dealings with Centrelink, which he had thought were kept confidential in a " secret " Centrelink file (T147.37) that were not readily accessible to non-Centrelink personnel, somehow found their way into the hands of a Daily Telegraph journalist, who wrote an article which included some statements purporting to reveal some aspects of Mr Habib's relationship with Centrelink.

Publication of Daily Telegraph article on 18 August 2005

191 On 18 August 2005, The Daily Telegraph newspaper published an article concerning Mr Habib, which appeared on page 2 of that publication. The article was tendered by the defendants as Exhibit "6", and was in the following terms:

" Daily Telegraph Article: War on Terror

A stretch but Habib wants his pension

By LUKE McILVEEN

FORMER Guantanamo Bay inmate Mamdouh Habib took part in Sunday's City To Surf fun run despite the fact he is seeking a disability pension from Australian taxpayers.

Yesterday Habib was maintaining his hectic pace, addressing a meeting of radical university students, denouncing the US Government as terrorists and condemning Australia's hardline on suspects.

As our picture shows, the former terror suspect has a long way to go before convincing Centrelink that he is unfit to work.

Mr Habib, who claims he suffers clinical depression, ran the City to Surf last weekend in a personal best of 82 minutes and 25 seconds.

And he showed no signs of fatigue yesterday when he lectured students at the University of Western Sydney on the topic of war and terrorism, when he described the US as a "pack of terrorists".

Mr Habib finished the City to Surf in the top 20 per cent, beating 40,000 other runners.

Mr Habib has been locked in a running battle with Centrelink since he was flown back to Sydney from Cuba last January, a trip which cost taxpayers $225,000.

He demanded access to a disability pension but was told he would have to reimburse taxpayers for $11,000 in overpayments.

In 1999, claiming depression, Mr Habib quit his job as a smaller (sic) business owner and began receiving $470 a fortnight.

His family continued to receive the payments while he was in Pakistan and during his subsequent imprisonment in Guantanamo Bay.

Mr Habib's lawyer Peter Erman told the Daily Telegraph his client was still "working through issues" with Centrelink following a six-figure payment for an interview with the 60 Minutes program. Mr Habib claimed he suffered physical and mental torture at the hands of US soldiers at Camp X-Ray. He alleged he was routinely beaten unconscious, kicked and tormented with electric shocks.

He told about 100 students at a UWS rally yesterday that the US, not him, was the "real terrorists".

"All the trouble comes from the US. Look at Oklahoma City, who is blowing up the US? Their own people," he said.

He also warned Australia not to follow strict US terror laws saying: "They can pick you up, take you away for seven days... tell you they are going to rape your wife and kids."

Mr Habib has become a regular on the speaking circuit, addressing University of Technology students last month and a rally in March to mark the International Day of Action.

Mr Habib has admitted he was in Pakistan prior to the September 11 New York attacks but has refused to answer claims he trained with al Qaeda in Afghanistan until brought before a court.

Photograph with caption

Caption - On the go... Mamdouh Habib stretches before last weekend's City to Surf"

192 It is agreed between the parties, that as a result of other proceedings, it has already been determined that the above article has been found not to have been defamatory of Mr Habib, and that the result of proceedings taken by Mr Habib against the Daily Telegraph is irrelevant to these proceedings.

The three broadcasts on 18 August 2005

193 The publication of the above article in the Daily Telegraph on 18 August 2005 was followed by the 3 radio broadcasts in question in these proceedings, later on that same day. The first broadcast was by Mr Laws, the second broadcast was by Mr Price and the third broadcast was by Mr Hadley. Mr Habib became aware of the content of them and this subsequently led to Mr Habib filing the present proceedings.

Estimated listening audience for the broadcasts

194 Radio 2UE Sydney Pty Ltd answered interrogatories which indicated that based on surveys, the broadcast of Mr Laws' programme about Mr Habib on 18 August 2011, had an estimated listening audience of between 70,000 and 82,000, and similarly the broadcast of Mr Price's remarks of 18 August 2005 concerning Mr Habib, had an estimated listening audience of between 65,000 and 71,000: Exhibit "Q".

195 Macquarie Radio Network Pty Ltd had answered interrogatories which indicated that, based on surveys, Mr Hadley's 18 August 2005 broadcast remarks concerning Mr Habib, had an estimated listening audience of between 101,000 and 114,000: Exhibit "R".

196 The content of Mr Hadley's 3 May 2011 broadcast concerning Mr Habib revealed that in addition to that broadcast in the Sydney area, the other listening areas for that broadcast also included Wagga Wagga, Griffith, Orange, Bathurst, Lithgow, Goulburn, Cooma, Canberra, the Mid-North Coast, Port Macquarie, Kempsey, Coffs Harbour, Mildura and Tamworth in New South Wales, but also, Charters Towers, Townsville, Hervey Bay and Maryborough in Queensland. Whilst there was no evidence of the extent of the likely listening audience in those areas, I infer from the widespread nature and the estimated extent of the listening audience on 18 August 2005, that the second defendant's broadcast of Mr Hadley's programme on 3 May 2011, was to a significantly large audience.

197 Mr Habib gave evidence of his feelings of upset and hurt that he had experienced after he had become aware of the content of those broadcasts. I shall return to the detail of that evidence when dealing with damages issues.

198 Neither of the defendants issued any apology to Mr Habib for any of the matters that they had broadcast about him. Instead, the defendants pleaded defences of truth, contextual truth, comment and qualified privilege, and pointedly cross-examined him as to his credit, and in that process accused him of lying when giving his evidence.

199 Cross-examination of that kind is not undertaken lightly in any case, but in a case such as this, if the accusation of lying when giving evidence is not sustained, this must have some significance to an ultimate damages assessment for hurt feelings and the like, because confrontations of that kind are, to say the least, laceratingly unpleasant.

Assault and stabbing incident involving Mr Habib on 21 August 2005

200 During the late evening of 21 August 2005, following a family social outing, Mr and Mrs Habib were walking in a park near their home. They did this in order to speak freely and to assist Mrs Habib to relax and alleviate her condition of anxiety: Exhibit "O" paragraph 6.

201 Whilst walking in the park with his wife, Mr Habib was struck from behind by an unknown assailant. After he had been struck he turned to see two men with hooded or covered faces. Mr Habib saw the flash of what appears to him to have been a knife or a sharp object. The man holding it made several lunges at Mr Habib with that object. Mr Habib succeeded in fending off the first blow but a second blow struck him in the abdomen as he tried to again fend off that person. In that assault, Mr Habib received a laceration to the abdomen in the region of his stomach. This laceration resulted in some bleeding but it did not require suturing. Following that assault, Mr Habib also experienced swelling and soreness to the back of his head where he had been struck.

202 On the following day Mr and Mrs Habib each gave a statement concerning these events to police at Granville Police Station: Exhibits "K" and "O".

203 In his statement to the police Mr Habib said that as his assailants ran off, one of them had yelled out to him words to the effect " Keep Quiet ": Exhibit K", paragraph 7.

204 In Mrs Habib's statement to the police concerning that incident, in which she too was pushed aside by one of those men, she described one of them as having said something like " This should keep you quiet ": Exhibit "O", paragraph 8.

205 The defendants made a serious credit attack upon Mr Habib on this matter, challenging his evidence about some of the details surrounding the assault on 21 August 2005.

206 The thrust of this component of the attack upon Mr Habib's credit was the suggestion that Mr Habib had fabricated his account of that assault in order to assist his financial interests in this present claim (T68.11 and T68.33). In submissions on this issue, on behalf of the defendants, Mr McClintock SC argued that this was an example of Mr Habib overstating his case by deliberate fabrication to increase his damages (T256.32 to T256.39). It was also argued that this was a matter that " very adversely " affected Mr Habib's credit (T247.49).

207 Mr Habib's statement to the police is prefaced with the following jurat :

"1. This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true. "

208 Accordingly, in that context, the assertion that in his statement, Mr Habib had given a fabricated account of the events of the alleged assault is an allegation of the utmost seriousness.

209 In asserting that Mr Habib had fabricated aspects of his statement, the defendants carry a heavy onus of proving that allegation on the balance of probabilities. In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. To use the vernacular, mere " mud slinging " in the hope that some of it sticks, is not a sufficient discharge of that onus.

210 On behalf of the defendants, Mr McClintock SC sought to develop the assertion of fabrication on Mr Habib's part by arguing that the evidence said to have been fabricated by Mr Habib was unsupported, except by his own testimony (T248.3), which was said to be contradicted by the police report, which I have taken to be a reference to the statements by Mr and Mrs Habib to the police, comprising Exhibit "K" and Exhibit "O", as well as being said to have been contradicted by the extract from Mr Habib's biography (T248.4). The submission so made went on to argue that Mr Habib's evidence on this point was unsupported by the evidence of Mrs Habib as to the detail of what was said by the attackers on the occasion of the assault (T248.46).

211 In 2008, Mr Habib wrote a biographical book, in conjunction with an author, Julia Collingwood, entitled " My Story, The tale of a terrorist who wasn't ". He was cross-examined on the content of that part of the book that was in evidence, which comprised 2 pages of extracts and a number of photographs: Exhibit "M" and Exhibit "4". The extract comprising Exhibit "4" was used as a basis for cross-examination on this issue.

212 For the reasons that follow, I have concluded that the submissions made on behalf of the defendants alleging fabrication of testimony on Mr Habib's part are flawed, and must be rejected.

213 First , it is fallacious to suggest that Mr Habib's evidence as to the contentious events occurring in the assault requires corroboration before it could be accepted. In my view, to follow such a course would be to apply an erroneous standard of proof, especially where the defendants have conceded that there was no dispute that Mr Habib and his wife had been attacked in the circumstances they described (T248.11). Contrary to the thrust of the comparative analysis submitted by the defendants, Mr Habib's account of what the attackers did and said during the events surrounding the assault stands or falls and is capable of acceptance or rejection without corroboration.

214 Secondly , when the police statements of Mr and Mrs Habib which comprise Exhibits "K" and "O" are examined, it does not appear to me that those statements should be read in a way that at all contradicts the evidence of Mr Habib in the manner suggested.

215 It was submitted on behalf of the defendants that it was simply not credible that the police, who took the time to obtain detailed statements from both Mr and Mrs Habib, would leave out from one or more of those statements, what was actually said by the attackers at the scene, or other relevant details (T248.10 to T248.28). The basis for that submission was explored in exchanges during oral submissions, where it was conceded on behalf of the defendants, that during the process assumed to have been used by police to compile such statements, it was possible, and not an unknown phenomenon, that at times, a matter which might later be thought to be of significance, might later be thought to have been left out of such statements (T248.27).

216 In considering the submission based on the contents of the statements Mr and Mrs Habib gave to the police, whether there were inclusions or omissions, I have concluded that the defendants' submission on this point should not be accepted. This is because there was insufficient evidence surrounding the circumstances of the taking of those statements to support an adverse finding that necessarily requires rejection of Mr Habib's account in favour of an acceptance of the defendants' fabrication of testimony argument.

217 It is manifestly evident from the descriptions within the statements, that there is a marked difference in style and syntax between the words there recorded, and the manner, style, coherence and content of Mr Habib's own use of language when giving evidence in these proceedings, and even in the recording of his interview with Mr Hadley on 3 May 2011, even allowing for the fact that on the latter occasion, he was undoubtedly agitated, if not also upset to a degree. I infer from the described and undisputed circumstances of the assault, where Mr Habib had been hit over the head, stabbed and was concerned about the fact that his wife had also been assaulted, that it was most unlikely that Mr Habib would have calmly and coherently dictated the verbatim account that is recorded in his statement Exhibit "K".

218 In making that finding I do not intend to convey the impression that the police officer who took the statements was at all derelict in his duty in any respect. He obviously typed a summarised version of the respective accounts in a more grammatically correct form, rather than in a verbatim account. If it were otherwise, the construction and syntax of that statement would most likely have been expressed in broken English, as that was Mr Habib's manner of speech. That fact persuades me that the statement is a summary of Mr Habib's account, and as such, it forms an inadequate basis upon which to base a finding that argued omissions from the statement demonstrate that Mr Habib had lied when giving evidence by fabricating details of the events of the assault, as was asserted by the defendants.

219 This leads me to conclude that Mr Habib's statements to the police that are relied upon by the defendants are more likely to represent summarised or condensed accounts of the events, and not fairly open to be critically compared with the details given in evidence by Mr Habib in these proceedings, especially without additional evidence being called as to the manner and circumstances of the compilation of these statements, applying similar considerations to those identified by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2], albeit in a different context.

220 Thirdly , the point the defendants seek to make based on an extracted portion of Mr Habib's biography seems to me to proceed upon a number of factors involving false premise, which is apparent from the analysis that follows.

221 It must be remembered that the book under present discussion was not entirely, if at all, written by Mr Habib, but was in fact ghost written either for him, or was written by Ms Collingwood in conjunction with Mr Habib. It is true that once Mr Habib had put his name to the publication he was responsible for its content. However, a false premise of the defendants' argument is the opportunistic hindsight submission that the book ought to have necessarily included material that contained a full and detailed account of the events surrounding the assault.

222 Even if that proposition was correct, other considerations would also undoubtedly apply, and would ordinarily be expected to have the effect of ameliorating or toning down any such specific content seeking to blame named persons for complicity in what was undoubtedly a criminal act perpetrated upon Mr Habib.

223 For example, such considerations include the process of elective editing by the joint contributors to the book, editorial input or censoring from the publisher, and possibly cost and space considerations, not to mention the potential cost of possible defamation proceedings, if named individuals chose to sue over the content of the book.

224 Having regard to these matters, it is not difficult to understand the need for the exercise of restraint in a published account in a book, which involves mention of other persons, concerning the matters under present consideration, especially in a society with readily available defamation laws, and where the law reports are replete with published cases concerning circumstances where persons have sued over less serious remarks than those Mr Habib is criticised for having omitted from his book.

225 In my view, that comment applies doubly here, and hardly needs stating, in circumstances where the co-author or co-contributor of the work in question, Mr Habib, at the time the book was published, was himself engaged in unresolved litigation claiming damages for defamation for hurt feelings. Mr Habib, Ms Collingwood and the publisher would have known at the time the book was written and published, that the communal values of our society rates highly freedom of speech, but publication of defamatory remarks comes at a price.

226 I therefore conclude that the argued omission of potentially corroborative material from Mr Habib's biography is not, as was submitted, a " killer point ", that defeats the claim or is a relevant contradicting factor that outweighs an acceptance of the credibility of Mr Habib's evidence on the issue of what was or was not said by one of his assailants, after the assault on 21 August 2005.

227 Fourthly , when the relevant portions of Exhibits "K" and "O" are examined, even when allowing for the fact that they are condensed or summarised, and not verbatim accounts, they are not so dissimilar in content as to warrant the interpretation that Mr Habib's version of events is not corroborated by Mrs Habib's version.

228 Relevantly, Mr Habib's statement to the police made reference to something said by the attackers. In this regard, in Exhibit "K", Mr Habib stated:

"5. Just after midnight, my wife and I left the house and walked down Guildford Road and turned left at the roundabout into BlaxcelI Street. At this stage, I believed my wife and I were being followed by a small black sedan. I decided to turn left into Markey Street to see if the car followed us. As we were walking down Markey Street, I didn't see the black car but I saw headlights behind us. As we continued to walk, the headlights went off. When we came to the end of the street, we crossed over a bridge into Bright Park. As soon as I walked into the park, I was struck to the back of the head from someone behind me. I'm not sure what I was struck with but I don't think it was a fist.

6. I turned around and pushed my wife away to protect her. I saw a male facing me with a knife in his hand, I'm not sure if it was his left or his right. I saw the shine from the knife, I'm not sure what sort of knife it was as it was very dark. The male was wearing a dark hooded jacket and also a cap. I couldn't see this man's face, There was another male standing next to him and his face was also covered up. The male with the knife was standing about one metre away from me. The male lunged at me with the knife a few times. The first time, my hands were in my jacket. I fended off the knife with my left hand whilst it was in the jacket. The second time, the knife struck me to the left side of my stomach under my ribs. The male lunged at me again a few more times with the knife. I was concerned about my wife and just tried to fend off the knife. I couldn't see where my wife was at the time as I was concentrating on the knife.

7. The two males then ran off towards Bright Street. As they ran off I heard the other male yell out "Keep quiet" or something similar to those words. When they ran, I checked to see if my wife was alright. My wife rang "000" and was speaking to the Police. We walked back towards Guildford Road and I checked under my shirt and saw that I had a wound to my stomach, it wasn't bleeding much and wasn't very deep, A short time later the Police and Ambulance arrived and I told them what had happened. A Police Dog arrived and searched the area.

8. I did not give any person permission to assault me in any way. As a result of the assault, I received a laceration to my stomach area that did not require stiches. I also received swelling and soreness to the back of my head.

9. I am unable to describe the two males as their faces were covered up. The male with the knife was about 170cm tall. I'm not sure of his build. I did notice he had a beard and moustach (sic) which was light brown in colour. It wasn't very long. I didn't take notice of the other male at all and cannot describe him.

10. I do not believe that these two males wanted to kill me, I believe they just wanted to scare me, I believe that this may have been done by either ASIO, John LAWS from the radio station or the Daily Telegraph."

229 Similarly, in Exhibit "O", Mrs Habib's statement to the police included the following relevant description of the events:

"8. We walked down Blaxcell Street and into Markey Street. Markey Street is dark and not well lit by street lights. As we were walking down Markey Street we noticed a car driving behind us and stop on the left side of the road, I have turned around to have a look and the headlights turned off. We have continued to walk to the end of Markey Street which turns into a park. We were going to walk left back towards our home but because we thought we were being followed and did not want anyone to know where we live we walked to the right into the park. We walked a little bit further and left onto a bridge. We passed the bridge and turned left again. We walked a few steps. All of a sudden I see a person hit my husband in the head. He had something in his hand but I could not see what it was. I have noticed he was wearing dark coloured pants, dark coloured jumper with a hood over his head and a dark coloured cap. I remember him having a really skinny and long face, I felt someone push me away to the right. I lost balance but did not fall to the ground. I was shaking and in shock but did not scream. I am not sure who pushed me. I was pushed I turned around and looked in the direction of my husband. I could see another man, also dressed in dark pants, dark jumper with a hood and dark cap. He was about 178cm tall and had a small goatee beard on his chin. He had something shiny and sharp in one of his hands. He might have been wearing gloves because I could not see his skin. He was stabbing my husband. It all happened so quickly. He was motioning the shiny object in his hand back and forward towards my husband's hip area on the left hand side, I saw my husband use his jacket to protect himself. Two men ran back towards where they come from and a third man ran towards a dead end street where there were houses. The third man was wearing a dark coloured jacket with yellow underneath, a hood over his head and a dark coloured cap. As they ran away the man holding the knife yelled out something like, "This should keep you quiet." This sounded to me like an Australian accent.

9. I have called triple 0 on my mobile phone. We continued to walk through the park towards Guildford Road while I was speaking to the lady on tripe (sic for triple) 0. I could see Mamdouh was holding his left hand over a cut on his left side stomach. I could see blood on his stomach and shirt. When we got to Guildford Road Mamdouh sat down on a wooden fence and we waited for Police and Ambulance.

10. During the entire incident (sic) scared, shocked and shaking. I didn't know what to do other then help my husband. I was more concerned he would be seriously hurt and I would be hurt or killed after that."

230 In comparing these two versions of events, a number of observations can be made. One is that the two accounts are not so strikingly dissimilar so that the credibility of one version would necessarily create doubt over the credibility of the other one.

231 Another observation is that the language and syntax used, for example, the use of the word " fended " in the case of Mr Habib, and the use of the word " motioning " in the case of Mrs Habib, tends to suggest that the police officer taking the statements was condensing or summarising the essence of the accounts rather than purporting to produce a faithful verbatim account of what was being said by Mr and Mrs Habib at the time those statements were taken. In other words, as would have been expected in that context, some discretion had obviously been used as to what actual words would be included in the description recorded in each statement. And that analysis ignores completely Mr Habib's evidence of his own perception that the police did not seem interested in incorporating the full extent of the detail that he was offering to them on this subject.

232 A further observation to be made is that Mrs Habib's comment to the effect that an assailant " yelled out something like 'This should keep you quiet' " was not all that dissimilar from Mr Habib's comment that he heard one of the assailants " yell out 'keep quiet' " or something similar to those words.

233 On this latter comparison, I consider that the submission that Mrs Habib's statement contradicts Mr Habib's evidence, is itself an unsupported interpretation.

234 Accordingly, I reject the submission that Mr Habib's evidence was relevantly contradicted by the evidence of Mrs Habib on the detail of what was said by one of the attackers in the assault on the evening of 21 August 2005.

235 When all of these preceding matters are weighed and considered against the suggestion that Mr Habib had fabricated his evidence in order to increase his damages, I consider that submission must fall away as an artificial and unsubstantiated assertion that should be rejected, because it lacks reasonable foundation for acceptance.

236 Before leaving the issue of the assault and the credibility of Mr Habib's account of what one of the attackers said to him on leaving the scene, it is relevant to deal with the question of Mr Habib's belief that these events had some connection with Mr Laws, a radio station, or any of the other entities referred to in paragraph 10 of Exhibit "K".

237 In evidence in these proceedings, Mr Habib had said he believed that by their broadcasts, the defendants, and more particularly, Mr Laws and Mr Hadley, had placed his life in danger. It is relevant to consider whether that view was reasonably held by Mr Habib.

238 The starting point of that consideration is the following interchange extracted from the broadcast by Mr Laws: Appendix A at lines 77 to 88:

"77 John Laws : Steve are you there?

78 Steve: Yes, I am John. How are you mate?

79 John Laws: I' okay, what can I do for you?

80 Steve: This, uhh, Mamdouh Habib....

81 John Laws: Yep.

82 Steve: ...I don't mind at all whether he gets his umm this

disability

83 payment.

84 John Laws: Really.

85 Steve: Well, providing that we can organise someone to

go out and give

86 him a disability .

87 John Laws: (laughs) Yeah .

88 Steve: That'd be the first thing ."

[Emphasis added]

239 In my view, when due regard is had to the ostracism aimed at Mr Habib in the broadcasts, when taken together with the comments by Mr Price on Mr Laws' programme, it is reasonable that Mr Habib would be concerned that someone might seriously take up that suggestion to give Mr Habib a disability, notwithstanding that the remarks could be read as having been made in jest, with a tone of ironic humour.

240 In the circumstances, I consider that it was not unreasonable that a person in the position of Mr Habib, who had a documented history of mental illness, would be concerned about such a connection between those remarks and the assault, and would then express that concern to the police.

241 I therefore reject the submission that Mr Habib fabricated or even exaggerated his account of the words uttered by one of his assailants for the purposes of enhancing the prospect of a financial gain from these proceedings.

Effects of the broadcasts on Mr Habib

242 I now turn to consider the effect the various broadcasts had upon Mr Habib.

243 In his evidence in chief, Mr Habib described having heard some of the broadcasts in question on the day they were made, and some recordings of others that had later been sent to him via his mobile telephone. That evidence was not questioned. He said he felt upset and sick when he heard them because the matters that were raised in those broadcasts involved untruths (T26.11 to T26.16). He went on to say that none of the imputations, which were read to him by his counsel in evidence, were true, and this had upset him (T26.42).

244 Mr Habib said of his reaction to hearing the song about him that had been played by Mr Laws, that this was very upsetting to him (T29.6). This was not surprising given the tone of mock and ridicule of that song. It was natural that Mr Habib would feel the sting of such remarks. In this regard, Mr Habib described himself as having felt angry, embarrassed and upset on that occasion, and also when the song had been loudly played by someone in a public park, whilst he and his family were attending a barbeque (T30). He described having been very upset at having to field some 20 or more telephone calls about the subject matter of the broadcasts, and he said that he found such conversations, including the anonymous calls dealing with the same subject matter, very upsetting (T31 to T36).

245 Mr Habib also described how, on many occasions, he had found it upsetting that people had seen him in the street, and had in effect bailed him up to discuss with him the subject matter of the broadcasts (T41). He also referred to having received telephone calls concerning the radio broadcast material about him (T71.10).

246 Mr Habib also described being upset at these broadcasts because they were abusive of him, and he was upset by that, and because in them he had been referred to as a bludger, a leech on Australia, and a moron. These latter matters related to imputations that had been accepted by the jury but where the jury also found that these latter imputations had not defamed Mr Habib, and were therefore not relevant to this residual component of the proceedings (T28.38).

247 Mr Habib described his social circumstances as having received fewer numbers of invitations after the broadcasts in question. The invitations in question related to social barbeques, invitations to private homes and invitations to speak at meetings (T42 to T44). The implication of that evidence, from the context, was that Mr Habib felt this was due to the effect of the broadcasts.

248 Mr Habib reiterated that the allegations in question, that had in effect labelled him as being dishonest and a welfare cheat with regard to the Centrelink allegations, were untrue, and were very upsetting to him. He continued to feel that way about the allegations up until the time of the trial (T51.8). It was not unexpected that he would still feel that way at the time of the trial in view of the credit attacks directed at him which reiterated the allegations or, to use the vernacular, rubbed salt into the wounds for extra sting.

249 On the issue of the 3 May 2011 radio broadcast by Mr Hadley, Mr Habib said he was very upset and depressed about Mr Hadley speaking about his defamation case on that occasion because he felt he had been put down in that discussion, and because he felt that his life was in danger every time Mr Hadley spoke about his litigation (T54.25).

250 In cross-examination, on behalf of the defendants, Mr McClintock SC made only limited challenges to Mr Habib's evidence as outlined above concerning the hurtful effect the broadcasts had upon Mr Habib.

251 In answer to questions in cross-examination, Mr Habib reiterated his view that he felt the broadcast by Mr Laws had placed his " life in risk and in danger " (T62.11). In this regard, he referred to the part of the broadcast material in which Mr Laws had suggested that Mr Habib could perhaps be made to acquire a disability (T64.26). He said he believed he was going to be attacked or killed (T65.17). Mr Habib stated his belief that he thought Mr Laws and Mr Hadley were trying to get rid of him and get him killed (T165.30 to T165.39; T 167.17). Mr Habib stated that he felt this was particularly so in the case of Mr Hadley (T167.44).

252 On the challenges made to Mr Habib in cross-examination concerning the interview with Mr Hadley on 3 May 2011, on the subject of Mr Habib's statement that he had felt pressured to speak with Mr Hadley on that occasion, an extract of Mr Habib's evidence on this point, at T74.40 to 75.21, is as follows:

" ...

... And what I'm trying to do, I try to clear myself because Ray Hadley and 2UE, 2GB, they're trying to make mess with my name and they make enemy for me. I put my life in the risk and I tried to clear my name, and that's what I tried to do. That's all. That's why, they pressure, they make me talk back to him. I don't want to talk back to him. Even my lawyer told me, "Don't talk to him." But for my worried - for my family and myself to get killed because he's been saying "I'm Afghanistan." or Osama Bin Laden, I was worried about what he says. I tried to stop him.

Q. But Mister--

A. Because people listen to him. They know - everybody listen to me. They listen to 2UE and 2GB. Every truck driver in Australia they listen to this guy.

Q. Mister--

A. I have - I have nothing to do with him. He is the one - he calling me. He's harassing me .

Q. Mr Habib--

A. Until today.

Q. Please Mr Habib. You were desperate to get on 2GB and broadcast the things that you said to Mr Hadley so that everyone heard them, weren't you?

A. No way in the world. I don't want to - well if I want to talk, I've got Channel 9; I've got Channel 10; I've got SBS. I've got the best people, at least, the good behaviour to talk with. Why I'm talk with my enemy. He's rude."

[Emphasis added]

253 Mr Habib's state of upset was well evident from the rapidity of his delivery of those words, and it was also well evident from the inability of the cross-examiner to conveniently interrupt or pause that delivery.

254 In connection with Mr Habib's belief that he thought Mr Laws and Mr Hadley were trying to get rid of him and to get him killed, whilst that belief seemed unlikely to be true, I am nevertheless satisfied that Mr Habib sincerely held that view as a result of the broadcasts. Whilst Mr Habib's view on this issue was at the extreme end of the spectrum of possible interpretations of the circumstances, given Mr Habib's experiences, including the assault on 21 August 2005, and given the cited contents of the broadcasts, I cannot conclude that Mr Habib's interpretation was entirely unreasonable.

255 In answers to questions put to him in re-examination, Mr Habib stated that the questions that had been asked of him in cross-examination to the effect that he had been making up his mental condition in 2005, had very badly upset him and had angered him (T174.29). He said he felt insulted by being asked those questions (T175.1).

256 Mr Habib said that when he was asked questions concerning allegations that he had tried to cheat Centrelink, it made him have the same feelings that he felt when he was in Guantanamo Bay, namely, being accused of something he had not done (T181.5 to T181.10). I infer from that answer that those questions had, at the very least, made him feel ill-at-ease in the witness box.

257 Mrs Habib first found out about the three broadcasts in question when she was told about them. She then listened to recordings of them on 18 August 2005 and again on other days. As to her observations of Mr Habib's reaction to the broadcasts and related occurrences, her evidence at T193.7 to T193.50, was as follows:

"Q. What was your husband's reaction when he heard the broadcasts?

A. He was extremely upset because he thought - he was trying to settle himself back in the country, his own country, and people been welcome him up and when it comes - and hearing stuff like this, he just couldn't believe, you know, things, you know, why would people do things like that about him? Why would they make allegation, wrong allegation, about him? He was really extremely upset.

Q. Without telling us what they were, did he receive any telephone calls after that?

A. Heaps of telephone calls. Even when we go barbecues or when we go in the streets people - people comment about the songs especially and the cheating the Centrelink.

Q. Well, did you hear people comment about him cheating Centrelink?

A. Yes, heaps of times and we had to stand up. Sometimes we just bump into people and he had to explain himself and try to make them understand that this is not true.

Q. Now, a barbecue, did anything happen at a barbecue?

A. Yeah, it was on a Saturday sometimes, after the broadcast, before the stabbing. He - we went to a picnic where lots of families were there and someone out of nowhere played the song on the loudspeaker and he got really, really upset and just - he said - the whole family, all of us.

Q. What did they play on the loudspeaker?

A. Hey Mandu?

Q. The Laws' song?

A. Yes.

Q. Now, can you think of any other incidents you observed with your husband say when you were out together somewhere?

A. Yeah, there's one time when we were at a traffic light. Actually I've even written the number plate, where a guy, he had his old mother, I think, with him and he just looked at him and he said, "You guy from the radio John Laws was talking about and you better watch your back, you cheater" and I took his number plate straight away. It was a blue Corolla or something and we report it to the police and police couldn't do anything. He has given us an event number and nothing can be done.

Q. Now, was your husband upset by that?

A. Of course. He was very upset."

258 Mrs Habib went on to recount other examples of situations at T195.35 to T195.43 where Mr Habib had become upset at being confronted with the need to discuss the broadcasts and the subject matter of them with strangers who had accosted him for that purpose:

"Q. All right. Now, were there other incidents when you were out with your husband, shopping or wherever, in the mall having coffee, where people said things about him and the radio programs?

A. As I said, there's so many different times happened, yes, and in shops, yes.

Q. On those occasions was your husband upset?

A. He has always been very upset and disturbed, but he tried his best to explain himself to make people aware that these all lies and just allegation against him."

259 Mrs Habib described her husband as having been so stressed at times when called by the media, that he could not sleep at all, and took sleeping tablets in order to get some rest (T201.5 to T201.10).

260 Mrs Habib's evidence on these matters was not challenged or traversed by cross-examination. In my view her evidence on the matters I have cited was not inherently or glaringly improbable, and in the absence of challenge, I accept it: Whalan v Kogarah Municipal Council [2007] NSWCA 5, per Heydon JA at [41] .

261 Mr Habib's daughter Miss Mariam Habib also gave evidence. She was aged 18 years at the hearing, and she was aged 12 years at the time of the broadcasts. At T224.17 to T224.37, she gave the following evidence:

"Q. Now, I want to take you back to when you were about 12. Did you hear either of your parents or your father play the radio broadcast , John Laws, Steve Price, Ray Hadley?

A. Yeah, I did.

Q. And how did your father appear to react to those?

A. He was very upset and depressed and he was crying, like when I seen him.

Q. And after that did you ever any people talking about your father and the radio broadcasts?

A. Yeah, the first time I heard the radio broadcasts it was by this girl at my school. Her name is Kion. She like told me about the radio broadcasts and she recorded, like recorded on her phone just a little bit of it and the next day I told my dad about it.

Q. And did you tell your dad?

A. Yeah.

Q. And was your dad - what was his reaction?

A. He was already upset by it but and I told my mum and stuff and he was very upset."

262 Miss Habib was not cross-examined at all on any aspect of her evidence. I accept her evidence as truthful in its entirety: Whalan at [41] .

263 Ms Simone White, a social worker who was an acquaintance of the Habib family, had an association with Mr Habib in some social activism movements. She gave evidence of her observations of the effect of the broadcasts on Mr Habib. Her observations were made in the context that she had told Mr Habib something of the comments she had heard made by others about him following the three initial broadcasts. An extract of Ms White's evidence of these matters between T 230.45 to T232.3 was as follows:

"Q. Ms White, in respect of the comments that you've just referred to, can you remember whether or not, at a particular point in time, you spoke to Mr Habib about one or all of those comments?

A. I've - I've had numerous conversations with Mamdouh since the initial broadcast about this issue. I spoke with Mamdouh within a week of the broadcast occurring and I relayed to him that the people that had spoken to me about the broadcast were shocked and horrified about what they'd heard, that they thought it was racist, that they thought it was unfair, that they thought that there was no basis to it. And Mamdouh's reaction was that he was heartened by hearing these comments, that they justified the fact the - you know, he was distressed about what was happening and he - so - so Mamdouh's reaction, to my recollection, was that he was heartened that people were supporting him, that people thought that the broadcast was racist and demeaning and undermining and untrue.

Q. Ms White, after you became aware of the publication of the broadcasts, did you have an opportunity to meet with and observe Mamdouh Habib--

A. Yes, I did.

Q. In the period of time immediately after you understood the broadcasts were published?

A. Yes.

Q. Can you tell us please what you observed about Mr Habib's reaction - if anything - that you might be able to relate to the broadcasts themselves?

A. Mamdouh was distressed when I--

...

... You have indicated that you became aware of the John Laws broadcast and on the date on which you became aware of that broadcast, did you have an opportunity to meet with and observe Mr Habib?

A. Sorry, I'm confused about the question. Do you mean on the date that the - did I meet with the - Mr Habib on the date that the broadcast occurred?

Q. Or any time immediately thereafter?

A. I didn't meet with him on the day that the broadcast occurred but I did see Mamdouh within - like I can't say exactly the exact time but it would have been within a month of the broadcast occurring, yeah.

Q. Did he say anything to you or do anything that suggested to you that he had heard that particular John Laws broadcast?

A. Yes, he - he spoke to me about the broadcast. He explained the content of the broadcast. He was distressed, he - he explained that he felt like he'd been unfairly accused of things that were completely basis - baseless and untrue. He - his distress extended to him saying that he thought that this was just another way that, you know, he was a victim of racism. So he was demonstrably upset and angry."

264 Ms White's evidence on her observations as to the effect of these broadcasts on Mr Habib, as outlined above, was not challenged. I therefore accept her evidence on those matters: Whalan at [41] .

265 It is clear from the foregoing evidence that I have extracted, summarised and accepted, that Mr Habib's reaction to the content of the broadcasts of 18 August 2005 was one of significant emotional upset, to say the very least.

266 The matters outlined in the preceding paragraphs must be taken into consideration in any damages assessment.

267 Before considering the defences and the remaining issues, it is necessary to clear up some matters that emerged in the evidence, and that could be thought to have a bearing on Mr Habib's credit.

Centrelink payments to Mr Habib 2006 - 2009

268 The schedule comprising Exhibit "5" appears to show that Mr Habib received a Newstart Allowance for the period 31 January 2005 to 23 February 2005, with an apparent adjustment for overpayment or for a repayment. The next entry for the resumption of Newstart Allowance payments to Mr Habib was well after the broadcasts in question namely, on 17 July 2006, with those payments continuing until 17 October 2006.

269 On 1 August 2006 Mr Habib's Centrelink records were annotated to the effect that the sum of $140,000 " received " for the 60 Minutes interview had been adjusted to " zero " in a Centrelink eligibility calculation that had been undertaken on that date: Exhibit "1", p 15. The details of the calculation were not apparent from the file. This adjustment appears to have paved the way for Mr Habib to recommence receiving Centrelink benefits. There is no suggestion that he was not entitled to do so.

270 It appears that this adjustment was made because, on an unspecified date, Mrs Habib had gifted an amount of $75,000, which was apparently part of the sum of $140,000, to one of her sons, which was a measure I infer then operated to reduce the period during which Mr Habib was precluded from receiving Centrelink benefits.

271 As a result of that adjustment to Centrelink's records concerning Mr Habib's eligibility to obtain Centrelink benefits, on 3 October 2006, Centrelink resumed making social security payments of benefits to Mr Habib. In this instance, the payment was for a disability pension. There is no suggestion from within the evidence or submissions in this case, that Mr Habib was anything other than legally and medically entitled to receive that pension.

272 Thereafter, the records show that on 18 October 2006 Mr Habib commenced receiving a Disability Support Pension, and the payment of that pension continued to be made until 6 January 2009. No explanation was explored as to the reasons for those payments ceasing on 6 January 2009, and no adverse comment arises against Mr Habib as a consequence of the fact that those payments stopped on that date.

273 Since the schedule of Centrelink payments was printed on 26 July 2011, I infer from its form and content that Mr Habib has not been in receipt of payments from Centrelink between 7 January 2009 and 26 July 2011.

Centrelink notation concerning lodgement of income tax returns 1999 to 2005

274 Although the defendants made no challenges to Mr Habib's account of his personal or work history, nevertheless, a potential credit issue has emerged from Exhibit "1". This concerned whether or not Mr Habib had filed income tax returns in the period 1990 to 2005. The Centrelink notation for 10 May 2005 which showed that a Centrelink officer had undertaken an internal review of Mr Habib's social security entitlements on that date (Exhibit "1", p 18) contained the text of the archived record for that entry as follows:

"Customer Service Officer actioned record on 10 MAY 2005 regarding Review of Entitlement for Disability Support Pension. Information was obtained via Internal. Document created by NW6 on 10 MAY 2005. 2nd request for information which was sent on Friday 8 april (sic) to cust (sic) has not been returned. Verification checks have been made with the ATO who have confirmed that they have no record of any tax returns lodged by cust since 1990 . Bycorp checks with Credit Reference Association show no finance applications during the period."

[Emphasis added]

275 Mr Habib was cross-examined on the content of the above record that concerned the lodgement of income tax returns. He denied there were irregularities in his relationship with the Australian Tax Office in that regard.

276 In contrast to the suggestion appearing in the Centrelink records, Mr Habib stated that he had always lodged his tax returns " until last year " although sometimes they were delayed (T127.25). He also stated that he had always paid his tax on time (T126.25). He stated the timing of lodgement depended upon the " business " and how his accountant's office dealt with it. He said he had never been fined over taxation matters and had always paid taxes on time (T127.20 to T127.25). Mr Habib disclosed the name of the accountancy firm he dealt with for tax matters. The issue was not further pursued in the evidence (T127.38).

277 When I came to consider the meaning and importance of Mr Habib's reference to " until last year " as cited above, I was left in doubt as to whether this was literally a plain statement to the effect he had lodged returns until 2010, or whether it meant the last year in the sense of a last but unidentified year in a series of years. The latter meaning arose possibly because of Mr Habib's manner of accented and clipped speech. This could be a matter of style of speech having regard to ethnic and cultural issues that I am obliged to consider: Goodrich Aerospace Pty Limited v Arsic (2006) NSWCA 187 per Ipp JA at [21].

278 Although the cited portion of the Centrelink record gave rise to a legitimate question as to whether Mr Habib had in fact lodged income tax returns in the period referred to, I considered that the hearsay nature of the Centrelink record entry was not conclusive evidence on the point and of itself, it should not displace Mr Habib's sworn evidence that I have already summarised. I took that view because, absent admissions by Mr Habib on this subject, a finding that untrue evidence had been given on such an issue involves a serious allegation for which sound proof must be shown to exist.

279 In this context, on analysis, a number of possible explanations arise, none of which were canvassed in the evidence, and in fairness, these considerations have to be weighed with Mr Habib's evidence on the point when that evidence is weighed against the content of the above Centrelink note.

280 In considering these matters it is relevant to observe that it is a matter of common knowledge that the obligation to lodge an income tax return only arises when, in a given year, a person receives earnings that are over the level of the tax free threshold. There is no evidence in these proceedings that Mr Habib ever derived taxable earnings above the tax free threshold in the period 1990 to 30 June 2004, which was the end of the previous financial year, noting that at the time the 10 May 2005 Centrelink notation was made, any obligation on Mr Habib to lodge an income tax return for the financial year ended 30 June 2005 had not yet arisen.

281 In that regard, Mr Habib was in receipt of social security payments between 1999 and 2001, and he was in Guantanamo Bay between 2002 and 2005, so it would appear unlikely that he would have derived assessable income from personal earnings in those periods.

282 It should also be observed that Mr Habib's claim that he paid his income taxes when due is not necessarily inconsistent with the non-lodgement of income tax returns as the possibility exists that income tax may have been deducted at the source in circumstances where no returns were required to be lodged because of the tax free threshold.

283 Further, in the period 1997-1998, the receipt of Centrelink benefits was regarded as being taxable income, depending upon the amount received. I infer from this evidence that the same position prevailed between 1999 and 2005, and beforehand. Whilst the Centrelink payment record does not indicate there were any deductions made on account of tax, the reasonable assumption is that such payments are taxed at the source at the time of payment.

284 Another consideration which has some basis from within the evidence is that Mr Habib's businesses were conducted through a company structure, and it may well be that the lodgement of tax returns to which he was referring, related to the returns of the company, assuming he was a relevant director. It is possible that if there were company earnings, they could have been of such an order that any dividends due to him from the company were below the tax-free threshold. However, that comment would not apply once he was on Centrelink benefits after 1999.

285 Whilst it is true that the above array of possibilities involve some speculation, which is a method of analysis that should be eschewed in the process of fact finding, it is also true that the probity of Mr Habib's tax return lodgement history was not fully explored in the evidence, which means that any adverse finding against Mr Habib on this issue should not be made on the state of the evidence, particularly as it was not explored to a degree that permitted a relevant finding to be made.

286 After having due regard to those matters, I do not consider that Mr Habib's uncontroverted evidence on the issue of lodgement of his tax returns was improbable, either glaringly or otherwise, when the logical possibilities are examined, and when that examination is aligned with the Centrelink note that I have cited. I therefore do not consider the apparent tension between the Centrelink note dated 10 May 2005 that I have cited, and Mr Habib's evidence as to the regularity of his tax affairs, demands resolution by findings that are adverse to Mr Habib's credit, where there was a number of other unexplored possible explanations for the Centrelink note.

287 Accordingly, for the foregoing reasons, I find that no adverse credit finding arises against Mr Habib over the content of the cited Centrelink note as to alleged non-lodgement of income tax returns by him.

C. FINDINGS ON DEFENCES

288 The defendants filed Further Amended Defences to the plaintiff's SFASOC. Those documents raised the pleaded defences of truth, contextual truth, comment and qualified privilege. I set out my consideration of those defences in the paragraphs that follow.

Defence of qualified privilege

289 On behalf of the defendants, Mr McClintock SC indicated that the pleaded defence of qualified privilege would not be argued, and it was thereby abandoned. Accordingly, I formally reject the pleaded defence of qualified privilege.

Defence of Truth

290 Of the three imputations found by the jury to have been conveyed by the respective broadcasts by the defendants, as cited in paragraph [7] of these reasons, in respect of each of them, the defendants sought to impugn the honesty of the plaintiff.

291 Only the second defendant directed arguments to seek to justify the truth of the dishonesty imputation arising from the broadcast by Mr Hadley on 18 August 2005. No arguments were directed at seeking to justify the truth of the imputations arising from the broadcasts by Mr Laws and Mr Price on 18 August 2005. In this regard, if the imputation arising from the broadcast by Mr Hadley was justified as truth or substantial truth, the plaintiff must necessarily fail in his claim.

292 The defence of truth in defamation proceedings brought under the Defamation Act 1974 is governed by s 15(2) of that Act, which relevantly provides as follows:

" 15 ...

(1) ...

(2) It is a defence as to any imputation complained of that:

(a) the imputation is a matter of substantial truth, and

(b) the imputation either relates to a matter of public interest or is published under qualified privilege."

293 Given the notoriety of Mr Habib's circumstances on his return to Australia in January 2005, his reputed whereabouts immediately beforehand, the media interest in him on his return, and his appearance on the televised 60 Minutes programme, there is little room for doubt that the imputation arising from the broadcast by Mr Hadley that " the plaintiff is dishonest because he is trying to get his hands on a disability pension even though he is so fit he can run in the City to Surf and beat 40,000 people " involves a matter of public interest: s 15(2)(b) of the Act.

294 Matters of public interest include the actions or omissions of a person engaged in activities that either inherently, expressly or inferentially invite public criticism or discussion: Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183, per Dawson, McHugh and Gummow JJ, at [15]. The circumstances of Mr Habib's return to Australia certainly invited public discussion, as did his appearance on the 60 Minutes programme, and his participation in the City to Surf race.

295 In order to make good the pleaded defence of truth, the defendants must show the imputation relied upon, is a matter of substantial truth: s 15(2)(a) of the Act .

296 In my view, for the reasons that follow, the second defendant has failed to establish the substantial truth of the imputation arising from the broadcast by Mr Hadley, and as a result, the truth defence must fail.

297 In this regard, there is no difficulty with the statements concerning the plaintiff's fitness to run in the 2005 City to Surf race, nor with the statement that in doing so, he beat 40,000 other contestants. However, the difficulty arises because of the element of the imputation to the effect that the plaintiff is trying to get a disability pension. There is a dissonance between the tense of the imputation and the events that relevantly occurred in the past.

298 The difficulty for the second defendant regarding that element of the imputation is that it is expressed to be in the present tense to the effect that Mr Habib " is trying " to obtain a disability pension, which must refer to the time of the broadcast on 18 August 2005, when the fact is that the only relevant attempt made by, or on behalf of the plaintiff to obtain a disability pension, was on 31 January 2005, and where that pension was then cancelled on 3 March 2005, effective from 16 February 2005 because of Mr Habib's financial ineligibility that arose subsequent to the lodgement of the application for a pension.

299 As Mr Habib's financial ineligibility for the disability pension only accrued as a fact on16 February 2005, which was at the time the sum of $140,000 was paid into Mrs Habib's bank account with the Arab Bank as a consequence of the broadcast of the 60 Minutes programme, as a matter of logic and common sense, the imputation raised is neither true or substantially true.

300 As a matter of fact, Mr Habib was not seeking to obtain a disability pension at the time of the broadcast by Mr Hadley. On the chronology of events in Mr Habib's dealings with Centrelink, no reasonable stretch of the meaning of language would permit an inference that Mr Habib was seeking a disability pension at the time of Mr Hadley's broadcast.

301 Accordingly, in my view, the sting of the charge of dishonesty made against Mr Habib in the imputation arising from Mr Hadley's broadcast on 18 August 2005 has not been justified on the evidence.

302 In their closing submissions, the defendants recognised the force of the above argument, and sought to argue that it was not to the point for the plaintiff to say that at the time of Mr Hadley's broadcast, he was not " trying to get his hands on a disability pension " as it was submitted that the plaintiff's application for a disability pension was still " on foot ".

303 The defendants' sought to justify that " on foot " submission by pointing to the internal review note in Exhibit "2" made by a Centrelink official on 10 May 2005, to assert that the plaintiff's application must therefore be seen as remaining pending, thereby justifying the charge of dishonesty.

304 In making that submission, the defendants argued that as the charge of dishonesty was at the essential core of the libel, the pending nature of the application was a mere inaccuracy " around the edge ", and of the type that can be excused, as occurred in Turcu v News Group Newspapers Limited [2005] EWHC 799, so that the defendants did not need to justify anything contained in the charge which did not add to the sting of it: Edwards v Bell (1824) 1 Bing 403, per Burrough J at 409.

305 In my view that submission is unreasonably tortuous and must be rejected because the essential core of the charge was that it was framed as present tense dishonesty, which has simply not been made out.

306 Insofar as the disparity in timing between Mr Habib's application for a pension on 31 January 2005, the grant of which was cancelled on 3 March 2005 to take effect from 16 February 2005, and his participation in the City to Surf race on 14 August 2005, and the subsequent broadcast by Mr Hadley on 18 August 2005, the lack of temporal connection between the events concerning the application for, and grant of, the pension, and the broadcasts, demonstrates the lack of merit in the defence of truth or substantial truth.

307 In my view it is unreasonable to assert, as the defendants do, that Mr Habib's claim for a disability pension was still " on foot " as at 18 August 2005, when his entitlement to that pension had been cancelled on 3 March 2005, effective from 16 February 2005, and where in the interim, the evidence indicated that Mr Habib had not taken any steps to seek to activate or reinstate that cancelled pension.

308 Accordingly, the defence of truth, or substantial truth is rejected.

Defence of Contextual Truth

309 The defendants also rely upon the defence of contextual truth pursuant to s 16 of the Defamation Act 1974, which provides:

" 16 Truth: contextual imputations

(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of.

(2) It is a defence to any imputation complained of that:

(a) the imputation relates to a matter of public interest or is published under qualified privilege,

(b) one or more imputations contextual to the imputation complained of:

(i) relate to a matter of public interest or are published under qualified privilege, and

(ii) are matters of substantial truth, and

(c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff."

310 The contextual truth imputations relied upon by the defendants are, for convenient reference, repeated here as follows:

(a) Mr Habib is dishonest because he tried to get his hands on a disability pension to which he was not entitled.

(b) Mr Habib is a dishonest welfare cheat.

311 To sustain a defence of contextual truth, in the case of each imputation, the defendants must prove:

(a) relevantly, the plaintiff's imputations and the contextual imputations relate to a matter of public interest;

(b) the contextual imputations are substantially true;

(c) the combined effect of the contextual imputations is that they differ in substance from that pleaded by the plaintiff;

(d) the contextual imputations are capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's pleaded imputation; and

(e) the nature of the contextual imputations are such that their substantial truth is capable of being rationally considered to so affect the plaintiff's reputation that the imputation of which the plaintiff complains did not further injure that reputation;

312 The foregoing considerations are distilled from authority: Jackson v John Fairfax & Sons Pty Ltd [1981] 1 NSWLR 36, at 40; Hepburn v TCN Channel Nine Pty Limited [1984] 1 NSWLR 386, at 399; John Fairfax & Sons Pty Ltd v Jones [2004] NSWCA 205, at [12].

313 There is no issue that each of the imputations, and each of the contextual imputations, relate to a matter of public interest: paragraph [24(a)] above .

314 I have already rejected the submission that the charge against the plaintiff in the imputation arising from the broadcast by Mr Hadley was substantially true: paragraph [24(b)] above .

315 The remaining elements (c), (d) and (e) of the consideration outlined in paragraph [24] above require analysis in the context of the particular broadcasts in which they arise. That consideration is as follows, in the form, and in the order that was argued by the defendants.

Contextual truth of the Laws imputation

316 The defendants have submitted that the contextual imputations differ in substance from the Laws imputation. It was submitted that the first of the contextual imputations expressly charges the plaintiff with having tried to obtain a pension to which he is not entitled. It was submitted that the second contextual imputation expressly charges the plaintiff as a welfare cheat. The defendants have submitted that the dishonest basis charged in the Laws imputation is at best indirect, in that there is no charge of cheating, nor is there a charge of obtaining a benefit by deception.

317 The defendants further submitted that when the Laws broadcast is considered as a whole, and in particular paragraphs 2 to 4 and the second-last sentence of the transcript of that broadcast, these imputations are capable of being conveyed by the matter complained of at the same time and in addition to the Laws imputation.

318 It is plain that even when the broadcast by Mr Laws is considered as a whole, the second and the fourth paragraphs of the transcript of that broadcast refer firstly, to the plaintiff " trying to get himself a disability pension", and secondly, to " his cause to get sickness benefits out of Centrelink". In my view they both raise the same spectre of disentitlement to disability or welfare payments in the context of an assertion of dishonesty, which is in turn, akin to an assertion that he is a welfare cheat.

319 In my view, as a result, they are substantially the same assertions. Dishonestly seeking a disability pension for which there is no entitlement is akin to a charge of being a dishonest welfare cheat. None of these matters reasonably give rise to substantially different imputations

320 The third paragraph of the transcript of the broadcast by Mr Laws provides an incorrect explanation as to why Centrelink allegedly refused to " grant " the plaintiff a disability pension, alleging an overpayment of $11,000, when in fact a pension was granted following the initial application on 31 January 2005, but it was later cancelled due to Mr Habib's subsequent financial ineligibility. Accordingly, the defendant's reference to that paragraph is obscure.

321 Finally, the defendants argued that the gravity of the contextual imputation outweighs the Laws imputation such that it could not further injure the plaintiff's reputation.

322 In my view, the Laws imputation in paragraph 3(c)(iii) of the FASOC, namely that of dishonesty in trying to get a disability pension is substantially the same as the contextual imputations of dishonesty and of being a welfare cheat. I consider that these are matters of equal gravity, and it must follow that the submission that the contextual imputation outweighs the Laws imputation without further injury to the plaintiff's reputation must be rejected because of the substantial similarity between those assertions.

323 It follows that no contextual truth defence is made out in respect of the Laws imputation.

Contextual truth of the Price imputation

324 The defendants similarly submitted that the contextual imputations concerning the Price imputation differ in substance from the Laws imputation in paragraph 5(a)(i) of the FASOC, particularly in the case of the second contextual imputation, which levels the charge of the plaintiff being a welfare cheat.

325 The defendants further submitted that when the Price broadcast is considered as a whole, and in particular paragraphs 3 and 4 of the transcript of that broadcast, these imputations are capable of being conveyed by the matter complained of at the same time and in addition to the Price imputation.

326 In my view, as with the Laws imputations as outlined above, the paragraphs of the transcript of the broadcast by Mr Price do not raise substantially different imputations to the Price or the Laws imputations.

327 The third paragraph of the transcript refers to the plaintiff as a social security " professional " in the context of him being " a bludger ... a leech on Australia ". The fourth paragraph of the transcript questions how did the plaintiff " get the pension in the first place".

328 Again, in my view it is apparent from the content I have cited that, all of these matters are substantially similar, which precludes the success of the defence of contextual truth.

329 As to the gravity of the contextual imputations, particularly the second of the contextual imputations, the defendants submitted that this outweighs that of the Price imputation such that it could not further injure the plaintiff's reputation. I do not accept that submission because of my finding that the imputations and the contextual imputations do not differ in substance.

330 It follows that no defence of contextual truth arises in respect of the Price imputation.

Contextual truth of the Hadley imputation

331 The defendants' submissions drew attention to the form of the Hadley imputation in paragraph 7 of the FASOC, the first of the contextual imputations, and the relationship between the truth defence and the defence of contextual truth. This was in order to argue that even in the event that the imputations from the broadcast by Mr Hadley cannot be justified under s 15 of the Act, as I have found to be the case because of the fact that the Hadley imputation was framed in the present tense, nevertheless, as it was submitted, the timing of the plaintiff's attempts to get the pension must be material.

332 In this regard, the defendants conceded that the requirement that the second defendant's second contextual imputation must materially differ in substance from the Hadley imputation, and must be capable of being conveyed at the same time as, and in addition to the Hadley imputation.

333 The contention of the second defendant is that even if the truth defence failed as a result of considerations of tense in the framing of the imputations, the alternative defence of contextual truth should succeed, especially with regard to the second contextual imputation which was said to differ in substance from the Hadley imputation.

334 For the same reasons I have outlined in connection with my findings concerning contextual truth and the Laws and Price imputations, I also find that there is no difference in substance in connection with the Hadley imputation.

335 In this regard, it was argued that both contextual imputations arise from the broadcast by Mr Hadley, and that the sting of them is such that the Hadley imputation does not further injure the plaintiff's reputation. In my view, this point does not arise because of the lack of difference in substance between the contextual imputation and the imputation pleaded by the plaintiff in relation to the broadcast by Mr Hadley: Jackson v John Fairfax & Sons Pty Ltd [1981] 1 NSWLR 36, at 40D.

336 It follows that no defence of contextual truth arises in respect of the Hadley imputation.

Conclusions concerning contextual imputations

337 For the reasons I have outlined in paragraphs [309] to [336] above, the pleaded and argued defences of contextual truth must be rejected.

Defence of Comment

338 The defendants rely upon the defence of comment of a servant or agent (respectively, Mr Laws, Mr Price and Mr Hadley) on a matter of public interest: s 30, s 31 and s 33 of the Act.

Overview of the defence of comment

339 Section 30 of the Act provides:

" 30 Proper material

(1) For the purposes of this section, but subject to subsection (2), "proper material for comment" means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest.

(2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest.

(3) The defences under this Division are available as to any comment if, but only if:

(a) the comment is based on proper material for comment, or

(b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment.

(4) There is no special rule governing the nature of the material which may be the basis of comment imputing a dishonourable motive or governing the degree of foundation or justification which comment imputing a dishonourable motive must have in the material on which the comment is based.

340 In outlining the defence of comment, on behalf of the defendants, Mr McClintock SC fairly conceded that the remarks of Mr Laws and Mr Price concerning Mr Habib were " not nice " comments, and that Mr Laws had exposed Mr Habib to ridicule. In the same vein, it was also fairly conceded that Mr Hadley's remarks concerning Mr Habib were " not a terribly edifying piece of public debate ".

341 Nevertheless, Mr McClintock SC argued that each of these three radio commentators were entitled to express their own opinions about Mr Habib without exposing the defendants to liability in damages for defamation, provided the broadcasts in question satisfied a number of required conditions, notably, the requirement of proper material for comment. If those conditions were met, then the defence of comment would be made out.

342 In this regard, the law governing defamation did not require that the opinions expressed be reasonable if, at the time of the respective broadcasts, the facts upon which the opinions were based, were made plain to the listener. In this regard, it was submitted that even if the expressed opinions are wrongly held, they are defensible as simply being matters of opinion or comment, and the validity or otherwise of the opinions or comments in question are matters with which the listener could either agree, or alternatively reject as " rubbish ".

343 The defence of comment and the conditions that must be satisfied in order to sustain the defence of comment in order to defeat the imputations, are governed by the provisions of s 32 of the Defamation Act 1974, which provides as follows:

" 32 Comment of defendant

(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of the defendant.

(2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, the comment did not represent the opinion of the defendant."

344 Subject to the " proper material " provision within s 30(3) of the Act, a defence of comment is only defeated if it can be shown that, at the time the comments were made, the comments in question did not actually represent the opinions of the defendants, which in this context, the reference to the defendants must be read as referring to each of the three commentators, Mr Laws, Mr Price and Mr Hadley: s 33, Defamation Act 1974.

345 The defendants argued that as Mr Habib has not demonstrated that either Mr Laws, Mr Price and Mr Hadley, did not actually hold the opinions that they had expressed concerning him, the only issues relating to the comment defence that require analysis are concerned with whether the defendants are able to fulfil the statutory requirements that sustain a defence of comment.

346 In cases such as this, from an evidentiary perspective, a plaintiff faces a high barrier if it is to be shown that the opinion expressed did not coincide with the opinion actually held by the commentator. It is therefore not surprising that Mr Habib was unable to show that either Mr Laws, Mr Price or Mr Hadley did not actually hold the opinions that they had expressed of him within their respective commentaries.

347 The effect of s 30(3) of the Act is that the defence of comment is available where the comment concerned is based upon proper material for comment, or the material for comment and the comment in question represents an opinion, which might reasonably be based upon that material to the extent that it is proper material for comment.

348 The question that is fundamental to the defence of comment is whether the comment concerned was either based on proper material for comment, or whether it was to some extent based on proper material for comment, and whether the comment represents an opinion that might be reasonably based on that material to the extent to which that material is a proper matter for comment: s 30(3)(a) and (b) of the Act.

349 In their submissions, the defendants pointed to the criteria for a successful comment defence to be fulfilled as follows:

(a) A statement of fact, which is a matter of substantial truth, is proper material for comment: s 30(2) of the Act;

(b) A comment is something in the nature of a deduction, inference, conclusion, criticisms, remark or observation: Clarke v Norton [1910] VLR 494, at 499;

(c) The limits of the defence of comment are very wide, and can protect comments that are:

(i) extreme and strongly expressed: John Fairfax & Sons Pty Ltd v O'Shane [2005] NSWCA 164, at [16];

(ii) violent, exaggerated or even in a sense, unjust: McQuire v Western Morning News [1903] 2 KB 100, at 110;

(iii) exaggerated, obstinate or prejudiced: Silken v Beaverbrook [1958] 1 WLR 743, at 747;

(iv) amounting to irrationality, stupidity or obstinacy: Turner v MGM Pictures Ltd [1950] 1 AllER 449, at 435; Cheng & Anor v Tse Wai Chun [2000] 3 HKLRD 418, at 435.

350 As is evident from the three broadcasts of 18 August 2005, and the transcripts of those broadcasts, some of the remarks made therein seem to qualify as extreme, strongly expressed, exaggerated, unjust, irrational and to the extent that it was suggested that perhaps it could be arranged for Mr Habib to be given a disability, also violent.

351 The defendants draw upon these statements from within the authorities I have cited, and rely upon the proposition that the comments that are protected by such criteria need not be reasonable, and that this allows room in public life for " the crank [and] the enthusiast [to] say what he honestly thinks as much as the reasonable man who sits on the jury ": Silken v Beaverbrook , at 747.

352 It is important to bear in mind that the defence of comment is made not to the matter complained of as a whole, but only to the imputation, however, in the consideration of these matters, regard may be had to the matter complained of that gave rise to the defamatory imputation: NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340, 349; John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164, at [40].

353 The defendants also rely upon the proposition that a statement which appears to be factual, and which is either true or false, may nevertheless be regarded as comment when it is drawn from other facts. In this regard, the defendants argue that an inference as to someone's motives may constitute an expression of opinion, even though the inference drawn may be to the effect that there exists a certain state of affairs, including a state of mind: Keays v Guardian Newspapers Ltd & Ors [2003] EWHC 1565; Branson v Bower [2001] EMLR 32.

354 The defendants have submitted that when each of the imputations are examined, it is apparent that " each of the imputations carries the badge of comment and each of the matters complained of was par excellence a comment piece ".

355 That submission was anchored to the propositions that Mr Laws, Mr Price and Mr Hadley are commentators on matters of public interest; they are in the business of publicising their opinions, and " in the tradition of talk-back radio, inviting the public to air their opinions or to agree or disagree with those opinions in light of the available facts ".

356 By that route of argument, the defendants sought to defend the expression of opinion embedded within each imputation, to the effect that the plaintiff is dishonest, and they sought to justify this as being a matter of public interest based upon proper material for comment.

357 In the paragraphs that follow, I set out my separate consideration of each of the defences of comment in relation to each of the three broadcasts made on 18 August 2005.

358 In the case of each imputation, the essential question is whether there was proper material for comment: s 30(3) of the Act.

Comment defence and the Laws imputation

359 The defendants have argued that in relation to the Laws imputation, the proper material for comment is constituted by the elements of the plaintiff being fit enough to run in the 2005 City to Surf race, a matter conceded by the plaintiff, the fact that the plaintiff ran in that race and beat 40,000 other people who competed in that race, a matter also conceded by the plaintiff, and finally, that " the plaintiff is trying to get a disability pension ", a matter the defendants have assumed to be true, but which was a disputed matter of fact that I have not accepted.

360 In my view, the fundamental flaw in the defendants' argument in respect of comment comprising the Laws imputation is the conflation of the events that prevailed at the time the application for a disability pension was made by the plaintiff or on his behalf on 31 January 2005, linked with the events of the plaintiff's participation in the City to Surf race almost 4 months later to arrive at the factually incorrect statement to the effect that at the time of the broadcast, the plaintiff " is trying to get a disability pension ".

361 In my view the temporal disconnection between those events demonstrates that the essential plank in the defendants' argument does not represent a statement of fact because of the factually incorrect character of the statement in question. It could not be reasonably said that the plaintiff was, as at the time of the broadcast, or at the time of the City to Surf race, currently trying to get a disability pension. Accordingly, although Mr Laws broadcast his opinion to that effect in the form of a comment, I consider that comment was not based on proper material for comment, and therefore the claimed defence of comment in relation to the broadcast by Mr Laws, must fail.

Comment defence and the Price imputation

362 The defendants have argued that in relation to the Price imputation, the proper material for comment is constituted by the elements that " the plaintiff is seeking a disability pension from Centrelink " and the conceded facts to the effect that the plaintiff ran in the 2005 City to Surf race, and that he beat 40,000 other people.

363 The statements the defendants seek to properly characterise as comment are the formulations that the plaintiff is not disabled, and " the plaintiff is attempting to deceive Centrelink ".

364 Again, consistent with the reasons for the conclusion I have reached concerning the present tense formulation of the comment in respect of the broadcast by Mr Laws, I consider that the claimed comment defence in respect of the broadcast by Mr Price is similarly afflicted by an erroneous foundation based on the present tense of the remarks and the imputation, and as such there is no proper material framing for comment to base the claimed defence.

365 Accordingly, I consider that the claimed defence of comment in relation to the broadcast by Mr Price, must also fail.

Comment defence and the Hadley imputation

366 The defendants have argued that in relation to the Hadley imputation, the proper material for comment is constituted by the elements that " the plaintiff is trying to get his hands on a disability pension" and that the plaintiff is not entitled to a disability pension. The relevant comment is identified as being " the plaintiff is dishonest ".

367 Consistent with my findings on the claimed defence of comment in relation to the Laws and the Price imputations, I consider that there is no proper material for comment in relation to this matter. In my view the flawed foundation for the claim that there was proper material for comment is the present tense assertion made at the time of the broadcast, that the plaintiff " is trying " to get a disability pension.

368 Accordingly, I consider that the claimed defence of comment in relation to the broadcast by Mr Price, must also fail.

Conclusions on claimed defence of comment

369 For the reasons I have outlined above, in respect of each of the imputations raised, the defendants have failed to make good their defence of comment, and those defences are accordingly rejected in relation to each of the broadcasts.

Consideration of matters raised in the reply filed by plaintiff

370 The reply filed by the plaintiff claimed that the defendants were actuated by express malice in the publication of the matters complained of. In support of the claim of malice the plaintiff asserted that:

(a) the broadcasts were inherently malicious as evidenced by their presentation, emphasis, delivery, repetition, and the abusive language spoken about the plaintiff;

(b) the reckless defence in pleading as a particular of truth that the plaintiff had applied for a disability pension at the time of publication;

(c) making reference to Centrelink in the defence in order to support an application to Centrelink to ascertain whether the plaintiff did make an application for a disability pension prior to 18 August 2005;

(d) Misconduct by the second defendant and its servants or agent, Mr Hadley, in speaking to the plaintiff by telephone on 3 May 2011, when he knew the trial was fixed for 17 October 2011, where Mr Hadley asked questions and sought information relative to the issues in the trial and as raised by the defence, and where it was asserted that Mr Hadley had denigrated and abused the plaintiff on Radio 2GB and, amongst other things, called him a " dole bludger ";

(e) the commentators did not have the opinions to which the comment defences related, and that the publication complained of was not in good faith for public information, advancement or education.

371 As to (e) above, the plaintiff was unable to show that the commentator did not hold the relevant opinions they had expressed in relation to him, and that the publications were not in good faith. Therefore, this component of the reply has not been sustained.

372 As to (d) above, it was certainly of interest to Mr Hadley, and those who assisted him, to arrange to have the plaintiff participate in a public broadcast on 3 May 2011 whilst this litigation was pending. Clearly, the second defendant, through Mr Hadley, saw a value in enticing the plaintiff into participating in an on air interview with Mr Hadley on Radio 2GB on 3 May 2011.

373 The plaintiff probably did feel he was harassed or goaded into participating in Mr Hadley's programme as a consequence of the calls he had received from Mr Hadley's assistant, requesting him to go on air with Mr Hadley.

374 Whilst the plaintiff probably saw an opportunity to ventilate some issues with Mr Hadley on air, co-incidental with any benefit and value Mr Hadley might have seen in having such participation from the plaintiff, it was at all times within the power the power of the plaintiff on 3 May 2011, to either decline, or to terminate his participation in Mr Hadley's programme. That said, the opportunity that arose for Mr Hadley to engage in discussion with Mr Habib in that way was not an unfettered one, or one without possible liability consequences in defamation, including aggravated damages, with regard to what would be said of Mr Habib in that broadcast. I shall return to this matter in due course.

375 As to (c) above, I see nothing within the reference to Centrelink in the filed defence as forming a basis for an award of aggravated damages. The Centrelink records relating to the plaintiff were at the front and centre of this litigation as the allegation of dishonesty had been levelled at the plaintiff in relation to his dealings with Centrelink. This is a matter that is covered by general compensatory damages, not aggravated damages.

376 As to (b) above, I have not been provided with sufficient evidence upon which to conclude, as the plaintiff submitted I should, that the defendants recklessly pleaded as a particular of their truth defence, that the plaintiff had applied for a disability pension at the time of the broadcasts. In my view, a finding of recklessness requires satisfactory evidence, and it cannot be inferred from unsound foundations. It ultimately transpired that the impugned plea of truth in the defence was misplaced, but the evidence does not satisfy the requirements for proof of recklessness.

377 As to (a) above, I am satisfied that the broadcasts were inherently malicious, as is evident from their presentation, emphasis, delivery, repetition, and the abusive language spoken about the plaintiff, as claimed.

378 I find that the tone and content of the broadcast by Mr Laws was clearly spiteful and laden with ill-will towards Mr Habib, as well as being intentionally aimed at ridiculing the plaintiff. Prime examples are the song that ridiculed and mocked the plaintiff, and Mr Laws' assent to the proposition raised by Mr Price that someone go out and give the plaintiff a disability. An additional factor is the intentional ostracism of the plaintiff, suggesting that he be laughed out of the country. These are matters of considerable aggravation that ought to sound in aggravated damages. I find that the plaintiff has established malice in respect of the broadcast by Mr Laws.

D. DAMAGES ASSESSMENT

379 The claims by the plaintiff for general compensatory damages and aggravated damages require separate consideration.

General compensatory damages

380 The defendants submitted that in the event the plaintiff is successful in establishing his entitlement to damages, general compensatory damages should be assessed at the lower end of the scale for such damages. In contrast, the plaintiff submitted that a much higher award was called for in the circumstances when the requisite elements are given due consideration. In that regard, Gatley on Libel and Slander , 10 th ed, page 230, states as follows:

"General damages serve three functions: to act as a consolation to the claimant for the distress he suffers from the publication of the statement; to repair the harm to his reputation (including, where relevant, his business reputation); and as a vindication of his reputation (in the eyes of the public)."

381 In support of that submission, and in accordance with the provisions of s 46A of the Act, which requires that such damages be assessed proportionately to the relevant harm, according to a rational and appropriate relationship with the harm, on behalf of the plaintiff, Mr Rasmussen submitted a series of case references and summaries exposing a range of awards for general compensatory damages that have been awarded in some 37 defamation cases decided between 1999 and 2008.

382 Whilst I have considered the underlying circumstances of those each of awards, I do not propose to individually review and analyse them here, other than to observe that the preponderance of those awards were made to professional persons such as medical practitioners, lawyers, businessmen and other professionals, and are distinguishable from Mr Habib's circumstances on the basis that Mr Habib has not suffered harm in the practise of a profession, as was the case in a significant number of those cited instances.

383 Here, the assessment exercise essentially requires the circumstances of the plaintiff, and the effect of the defamation upon his particular circumstances, to be taken into account. It is therefore not appropriate to undertake a case-by-case analysis for comparison purposes.

384 The matters I have taken into account include those matters set out between paragraphs [242] to [267] of these reasons, and Mr Habib's underlying health, as was explained in the medical evidence, which I have referred to and cited at [60] to [87] of my reasons.

385 When assessing general compensatory damages for defamation, the exercise is essentially one of assessing an appropriate solatium amount for hurt to feelings, damage to reputation and vindication: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, at 60. All three of these components must be included in one lump sum for compensatory damages, and the amount to be assessed is essentially one of impression rather than aggregating specific amounts for specific components: Broome v Cassell & Co Ltd [1972] AC 1027, at 1072.

386 In assessing general compensatory damages, I must also take into comparative consideration the amount of damages for non-economic loss to be awarded in other actions for damages for personal injuries: s 46A(2) of the Act.

387 In approaching these tasks, it is noteworthy that the plaintiff called only limited evidence of the effect the publications had on his reputation. That evidence was from Miss White, his wife Maha and his daughter Mariam, each of whom were clearly not influenced by the broadcasts, and as a result, did not think less of the plaintiff.

388 Recognising the impressionistic nature of the exercise, and at the same time confining the exercise to the task of identifying a fair amount to salve the hurt feelings of the plaintiff, injury to his reputation and for vindication, whilst at the same time ensuring a proportionality with a range of personal injury awards, the amount to be awarded has to be seen as compensatory to the plaintiff, not over-compensatory.

389 The amounts assessed must equate proportionately to damages awardable in personal injury actions in respect of claims in the modest to middle range attracting common law damages, and not covered by the table of percentages referred to in s 16 of the Civil Liability Act 2005. Instead, I shall have regard to common law considerations for the amount of non-economic loss as a general background source of comparison.

390 In making the required assessments, I note that the sting of each of the broadcasts still continues to have an adverse effect Mr Habib, and that the broadcasts still cause him upset.

391 I have already outlined the evidence that deals with the hurt and upset Mr Habib has experienced as a result of the broadcasts. In his submissions on behalf of the defendants, Mr McClintock SC conceded that those matters went beyond contemptuously low or nominal damages, and if accepted, as I have accepted them, this calls for proper damages for hurt to feelings, solatium and vindication.

392 I now turn to the assessment of damages in respect of each of the broadcasts. Understandably, counsel for the respective parties were reluctant to make submissions on what ought to be seen as a reasonable and appropriate range for general compensatory damages. The only assistance that was proffered by the parties was the submission on behalf of the plaintiff to the effect that there was no cap on such damages, and an award of about $180,000 per cause of action would be appropriate. The submission made on behalf of the defendants identified the customary jury submission to the effect that when assessing such damages, the feet of the assessor should remain firmly on the ground, which I took to be a call for realistically moderate damages to be awarded. I agree with the general appropriateness of that suggested approach in this case, and I shall adopt it in making my assessments in respect of each of the three broadcasts complained of broadcasts on 18 August 2005.

393 In taking an overview of the respective broadcasts, of the three broadcasts in question, it is plain that the broadcast by Mr Laws has had, and continues to have the most stinging effect on the plaintiff, and the plaintiff feels, whether rightly or wrongly, but as a natural probable consequence of the words used, that Mr Price's unfortunate remarks that suggested the proviso that " we can organise someone to go out there and give him a disability " have placed him and his family at risk of personal harm, a matter that naturally causes the plaintiff some distress. I do not consider the plaintiff is being unduly precious in not seeing any joke or humour in that statement. I therefore consider that the general compensatory damages that flow from the remarks by Mr Laws and Mr Price ought to be proportionately higher in respect of that broadcast, but as high as the figures submitted on behalf of the plaintiff.

394 Accordingly, I assess general compensatory damages against the respective defendants as follows:

(a) In respect of the broadcast by Mr John Laws on behalf of the first defendant : $70,000;

(b) In respect of the broadcast by Mr Steve Price on behalf of the first defendant : $25,000;

(c) In respect of the broadcast by Mr Ray Hadley on behalf of the second defendant : $25,000;

395 Taking the foregoing considerations into account, I have assessed general compensatory damages against the first defendant in the total amount of $95,000, and against the second defendant in the amount of $25,000.

396 In making those assessments I have considered the question of mitigation as explained in the paragraphs that follow.

Mitigation of compensatory general damages

397 The defendants submitted that " by reason of the plaintiff's bad reputation, the plaintiff is entitled to a lesser award of damage ": Scott v Sampson (1882) 8 QBD 491, a case decided well before the advent of the phenomenon of talk-back radio.

398 In support of that submission the defendants argued that the plaintiff's reputation was such that the imputations would reasonably and ordinarily cause much less damage than would be the case of a person of good reputation.

399 I consider that submission should be rejected because the correct approach, on the evidence adduced, is to regard the plaintiff as a person of good reputation. For the defendants to assert otherwise, evidence of bad reputation is required, and that evidence, either by tender of material, or conceded propositions put in cross-examination and sustained by findings of fact, is absent here. This is expressly so as a result of a forensic decision made in the conduct of the defence, as a matter I have recorded earlier in my reasons.

400 The defendants sought to justify the submission of argued bad reputation by referring to the evidence within Exhibit "4", the extract from the plaintiff's book, in which he referred to sections of his own Muslim community having shunned him on his return to Australia. I consider that the defendants have overstated the effect of that evidence as to Mr Habib's reputation, and I accept the plaintiff's explanation that suggested that he thought people in that community were wary or fearful of attracting unwarranted suspicion from certain government authorities if they were seen to be associated with him. Given the plaintiff's whereabouts between 2001 to January 2005, I consider that explanation from the plaintiff was a rational one, and not one that should be viewed as supporting a submission of bad reputation, particularly on the state of the cross-examination of the plaintiff on the issue.

401 The defendants also submitted that the plaintiff's credibility is a relevant matter to be taken into account on the question of mitigation of damages. In conformity with my findings on the credit of the plaintiff, I reject the submission that there were relevant credit issues concerning the plaintiff that should serve to mitigate the plaintiff's entitlement to general compensatory damages.

402 In coming to that conclusion I have taken the following matters into account.

403 The defendants submitted that Mr Habib was a seeker of publicity and that this should mitigate or ameliorate the level of damages that should be awarded to him.

404 On behalf of the defendants, Mr Habib's credit was attacked with the accusation that he was a " publicity hound " who would do anything to get his name in the papers and to appear on television (T77.42 to T77.47). It was also suggested to Mr Habib that he was " desperate " to get onto Mr Hadley's programme on 3 May 2001 in order to have his remarks broadcast (T75.17).

405 These suggestions followed an earlier suggestion made on behalf of the defendants that Mr Habib was not averse to publicity provided that it suited him (T77.39). Mr Habib denied these assertions. In the same vein, in connection with the 3 May 2011 broadcast by the second defendant, Mrs Habib denied the suggestion that her husband was anxious or enthusiastic to be interviewed by Mr Hadley (T199.33; T299.38 to T200.45).

406 Mr Habib responded to the publicity seeking assertions by denying them. He explained he believed he had done nothing wrong, and stated that over the previous 6 years, he had tried to publicly prove his innocence, as he put it. Mrs Habib gave similar evidence, stating that her husband had nothing to hide, and that he wanted to establish his innocence, and accordingly, her opinion was that he did not reject the opportunity to put forward his position. That statement had to be read in the context of the evidence of what Mr and Mrs Habib felt was media harassment of him, which was the reason that was put forward for Mr Habib having agreed to the interview with Mr Hadley on 3 May 2011.

407 The assertion that Mr Habib was a seeker of publicity arose in the context that he and his circumstances had attracted some media and public interest, undoubtedly as a result of his earlier detention in Guantanamo Bay, and the circumstances of his release and return to Australia. The evidence for that view is the very fact, timing and circumstances of the 60 Minutes interview, and the considerable sum of money that Nine Network Australia Pty Limited was willing to pay for the interview in order to defeat a rival bid for the exclusive right to interview Mr Habib, and to broadcast that interview.

408 In those circumstances, I do not consider that the description of Mr Habib as a seeker of publicity or a " publicity hound " is a fair rendition of the circumstances, where Mr Habib felt that as a result of the attention he had received and also as a result of the circumstances which led to that attention, he felt the need to prove his innocence.

409 I do not consider that the plaintiff's circumstances as described in the preceding paragraphs constitute ameliorating factors that should serve as discounting factors to reduce or discount the measure of damages that would otherwise be awardable to the plaintiff in this case, and which I have assessed at [395] of my reasons.

Aggravated damages

410 Aggravated damages are only awardable if the plaintiff can demonstrate that the defendants were lacking in bona fides , or had acted improperly, or unjustifiably: Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497, at 514.

411 On behalf of the defendants it was submitted that in this case, there should be no award of aggravated damages on account of the conduct of counsel for the defendants in conducting the defence at the trial, or for the conduct of the defendants in pursuing the defences of contextual truth and comment, or on account of the defendant's failure to apologise to the plaintiff, or in relation to the conduct of Mr Hadley in interviewing the plaintiff on 3 May 2011.

412 The defendants have submitted, in accordance with authority, that the vigorous persistence in a legitimate defence cannot be used to aggravate damages, and that forceful advocacy within appropriate limits, of itself, is not a matter of aggravation: Harbour Radio Pty Ltd v John Tingle [2001] NSWCA 194 at [26].

413 That statement is undoubtedly correct, and I consider that it is a full answer to the plaintiff's claim for aggravated damages in respect of the pursuit of the defences of contextual truth and comment, and in respect of the failure of the defendants to apologise to the plaintiff.

414 The absence of an apology is of itself insufficient to justify an award of aggravated damages. This is because the failure to apologise does not have the effect of increasing the hurt, and therefore the extent of the plaintiff's entitlement to damages, and conversely, if an apology is tendered, this may mitigate the level of damages that might otherwise be awarded: Carson v John Fairfax & Sons Ltd [2003] HC 31;(1993) 178 CLR 44, at 66. Furthermore, for an award of aggravated damages to be based on a failure to apologise, that course must be particularised as being part of a course of improper or unjustifiable conduct, which has not occurred in this case: Clark v Ainsworth (1996) 40 NSWLR 463, at 469, but not on account of the further broadcast to a wider audience on 3 May 2011, as that submission was not based on particulars, and it only arose in the course of final submissions, which gave rise to an objection as to its timing, which I consider to have been an objection justifiably made.

415 I now return to the matter of Mr Hadley's interview with the plaintiff on 3 May 2011 in the context of whether those circumstances should sound in aggravated damages.

416 That interview took place notwithstanding the fact that there was outstanding litigation still on foot between the parties, which was being vigorously contested, and where the parties had solicitors acting for them, and where there were no other avenues of communication open between them other than through their respective lawyers.

417 In that context, with the trial date already fixed, Mr Hadley had decided to canvass matters that were the subject of the litigation, and where it could be reasonably inferred he must have known the content of this interview could possibly be used for a purpose other than entertaining his listeners, namely for the purpose of attempting to embarrass, if not defeat the plaintiff's claim. That purpose may be arguably seen as lacking in bona fides and unjustifiable. I consider this to be so because of the content of the interview in which the plaintiff was encouraged to engage in discussion with Mr Hadley in a manner that was critical of his situation.

418 I infer from these circumstances, and from the contents of the interview as shown in the transcript, that it would appear Mr Hadley's purpose was to attempt to assist himself in the defence of the plaintiff's proceedings.

419 On the foregoing analysis, the plaintiff sought to demonstrate his entitlement to aggravated damages in respect of that conduct by Mr Hadley, for which the second defendant would be responsible, if that submission was to be accepted.

420 However, in my view, this aspect of the claim has not been made out. At all times, the plaintiff had the option of whether or not he should speak with Mr Hadley on 3 May 2011, or even whether he should continue to speak to him as he was being drawn further into the conversation. In my view he decided to participate in that interview for his own stated reasons, and he cannot reasonably be heard to complain of the consequences, where he later became dissatisfied with the impression that was conveyed of him in that broadcast.

421 I now turn to the matters complained of by the plaintiff arising from the cross-examination of him, which he argues as a basis for his claim for aggravated damages.

422 This concerned the cross-examination of Mr Habib to the effect that he was " making up " what he was saying in his evidence about his mental condition in February 2005: T137.32 - 33.

423 The complaint is that this question was put to Mr Habib in circumstances where the evidence as to his mental condition, as described in the opinions of Professor Tennant, and his general practitioner, Dr Alameddin, was not challenged, and was not contradicted by other medical evidence.

424 On behalf of the defendants it was submitted, in defence of the question under scrutiny here, and in resistance of a claim for aggravated damages, that the question was a legitimate one which was permissibly put to the plaintiff in the course of a challenge made to his credit.

425 There is little room for doubt that when cross-examining a witness on the credit, the cross-examiner is able to draw upon a variety of confrontational techniques to seek to highlight credit issues. The question under present consideration, and which was adopted by senior counsel for the defendants in his cross-examination of Mr Habib in this case, is but one of those techniques, and there can be no criticism of senior counsel for taking that course.

426 However, that is not the end of the analysis, because the employment of that technique, if unsupported by other evidence or concessions which serves to traduce or embarrass the plaintiff's responses, comes at a forensic price where the subject matter of the questions, here the assertion the plaintiff was giving made-up or false evidence, is a type of dishonesty that transcends the particularised type of dishonesty that concerned the plaintiff's dealings with Centrelink over his entitlement to a disability pension.

427 In my view, in the absence of medical evidence of that kind to provide a basis for an assertion that the plaintiff was making up his evidence about his mental condition, a matter for opinion, indicates that the ensuing unsuccessful credit challenge would be likely to, and in this case did in fact, aggravate the plaintiff's sense of grievance at being accused of dishonesty.

428 Accordingly, I consider that the plaintiff has made out a case for aggravated damages in respect of the challenge in cross-examination to the effect that he was making-up what he said about his mental condition in February 2005. The assessment of such aggravated damages is a matter for impression.

429 Having formed the impression that the effect of the aggravating factors on the plaintiff was significant, I assess the plaintiff's entitlement to aggravated damages as against the first defendant in respect of the broadcast by Mr Laws, and taking into account the interchange in which Mr Price and Mr Laws discussed the prospect of giving the plaintiff a disability, and also taking into account the attack made on the plaintiff in cross-examination to the effect that the plaintiff was making-up what he was saying about his mental condition in 2005, in the aggregate sum of $25,000;

430 In assessing this amount for aggravated damages I am mindful of the need to take care to avoid overlap of general compensatory damages and aggravated damages, both being forms of compensatory damages, as that could lead to over-compensation. Were it not for that factor, my assessments of the separate amounts for aggravated damages would have been significantly increased in this case.

Interest

431 In his statement of claim the plaintiff makes a claim for interest on damages. That claim can only relate to the claim for past compensatory damages between the time of the broadcasts on 18 August 2005, and the date of judgment, a period of 6.52 years.

432 In this case I see no reason why the plaintiff should not be awarded interest on general compensatory damages at the full rate of 4 per cent on the whole amount of general compensatory damages. The principle is that unless there are exceptional circumstances, the plaintiff is to be compensated with interest on his damages during the period the defendant has continued to have the benefit of such monies to the detriment of the plaintiff: s 100 of the Civil Procedure Act 2005; Marsland v Andjelic (No 2) (1993) 32 NSWLR 649, per Kirby P and Meagher JA at 652.

433 I do not consider there are exceptional circumstances in this case. Accordingly, I consider that the plaintiff is entitled to interest.

434 On the assessment of damages of $70,000 in respect of the broadcast by Mr Laws, interest at 4 per cent on $70,000 over 6.52 years is assessed in the sum of $18,256.

435 On the assessment of damages of $25,000 in respect of the broadcast by Mr Price, interest at 4 per cent on $25,000 over 6.52 years is assessed in the sum of $6520.

436 On the assessment of damages of $25,000 in respect of the broadcast by Mr Hadley, interest at 4 per cent on $25,000 over 6.52 years is assessed in the sum of $6520.

437 In aggregating the first two of these sums, I assess the interest payable to the plaintiff by the first defendant in the sum of $24,776. I assess the interest payable to the plaintiff by the second defendant in the amount of $6520.

E. DISPOSITION, COSTS & ORDERS

Disposition

438 The defendants have failed to establish their defences. Mr Habib has succeeded against the first defendant and he is entitled to an award of damages against that defendant in the total sum of $95,000. Mr Habib has also succeeded against the second defendant and he is entitled to an award of damages against that defendant in the total sum of $25,000. In each instance, interest is respectively assessed in the sum of $24,776 against the first defendant, and $6520 against the second defendant. This results in a judgment for the plaintiff against the first defendant in the sum of $176,276, and a judgment against the second defendant in the sum of $31,520

Costs

439 The result of the proceedings in which the plaintiff is to recover a total award of $176,296, requires that the defendants should pay Mr Habib's costs of the proceedings on the ordinary basis unless either party can establish an entitlement to some other costs order. The parties have leave to apply for a variation of the costs order I propose to make in favour of the plaintiff if they consider there are circumstances that warrant a departure from the usual order made at the conclusion of proceedings.

Orders

440 On Mr Habib's claim against the first defendant Radio 2UE Sydney Pty Limited, in respect of the broadcasts by Mr Laws and Mr Price on 18 August 2005, I make orders as follows:

(a) Verdict for Mr Habib on his claim in respect of pleaded imputations in paragraphs 3(c)(ii) and 5(a)(i) of the further amended statement of claim filed on 8 April 2011;

(b) General compensatory damages are assessed as follows;

(i) $70,000 in respect of the broadcast by Mr Laws;

(ii) $25,000 in respect of the broadcast by Mr Price;

(c) Aggravated damages are assessed in the sum of $25,000 in respect of the broadcast by Mr Laws;

(d) Interest on past general compensatory damages is assessed at $24,776;

(e) Judgment in favour of Mr Habib against the first defendant in the sum of $144,776.

441 On Mr Habib's claim against the second defendant Macquarie Radio Network Pty Ltd, in respect of the broadcast by Mr Hadley on 18 August 2005, I make orders as follows:

(a) Verdict for Mr Habib on Mr Habib's claim in respect of pleaded imputations in paragraph 7 of the further amended statement of claim filed on 8 April 2011;

(b) General compensatory damages are assessed at $25,000 in respect of the broadcast on 18 August 2005 by Mr Hadley;

(c) Interest on past general compensatory damages are assessed at $6520;

(d) Judgment in favour of Mr Habib in the sum of $31,520.

442 The defendants are each to pay Mr Habib's costs on the ordinary basis unless otherwise ordered.

443 The exhibits may be returned on the application of the parties.

444 Liberty to apply on 7 days notice if further orders are required.

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Appendices A to E

Decision last updated: 24 February 2012