In addition, he claims aggravated damages and he claims that the circumstances of aggravation mean that the statutory cap or limit on damages for non-economic loss imposed by s 35 of the Defamation Act 2005 (NSW) does not apply. In addition, the applicant seeks a substantial award of damages for economic loss or loss of earning capacity.
15 The applicant also claims in each proceeding a permanent injunction restraining publication by the respondents of such defamatory imputations as are found by the Court, an order requiring the removal from the websites of any of the matters complained of which remain thereon, interest and costs.
16 The defences in each proceeding are similar. They are justification or substantial truth (s 25 of the Defamation Act) and contextual truth (s 26 of the Defamation Act). In the alternative, the respondents plead a number of matters said to mitigate damages. In the further alternative, the respondents sought to invoke, by reason of the circumstances they identified, the principle that the Court is entitled to have regard to all the evidence before it and that if that evidence establishes that the applicant in the proceeding has deceived the Court and has engaged in misconduct then, in those circumstances, even if the respondents' defences fail, the applicant should be awarded only nominal damages (Joseph v Spiller [2012] EWHC 2958 (QB); Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29; Gatley C, Parkes R and Busuttil G, Gatley on Libel and Slander (13th ed, Thomson Reuters, 2022) at para 10–005). As will become clear, it is not necessary for me to address this submission.
17 Before proceeding to the next Part of these reasons, the following should be noted.
18 These proceedings were commenced in August 2018. On 31 March 2020, the Attorney-General for the Commonwealth gave a notice in writing to the parties to the proceedings, the legal representatives of the parties to the proceedings and the Court to the effect that the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the NSI Act) applied to these proceedings. On 15 July 2020, I made orders under s 38B and s 19(3A) of the NSI Act. Section 38B is in the following terms:
(1) At any time during a civil proceeding:
- (a) the Attorney-General, on the Commonwealth's behalf; and
- (b) the parties to the proceeding, or their legal representatives on their behalf;
may agree to an arrangement about the disclosure, protection, storage, handling or destruction, in the proceeding, of national security information.
