Abou-Lokmeh v Harbour Radio Pty Ltd

Court of Appeal (NSW)|2016-07-19|Before: McColl JA, Gleeson JA, Payne JA, Adam P, Hunt J

v Anderson [1942] AC 206 London Association for Protection of Trade v Greenlands Limited [1916] 2 AC 15 Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503 Maisel v Financial Times Ltd (1915) 112 LT 953 Marshall v Megna [2013] NSWCA 30 McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196 McNicol v ACT Health Authority [1988] ACTSC 55 Mizikovsky v Queensland Television Ltd [2013] QCA 68; [2014] 1 Qd R 197 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Mowlds v Fergusson [1940] HCA 38; (1940) 64 CLR 206 Murray v Barlee (1834) 3 My & K 209; 40 ER 80 Nationwide News Pty Ltd v Warton [2002] NSWCA 377 Norton v Hoare (No 1) [1913] HCA 51; (1913) 17 CLR 310 Palmer v Belan [1999] NSWSC 187 Penton v Calwell [1945] HCA 51; (1945) 70 CLR 219 R v Inland Revenue Commissioners, Ex parte Rossminster Ltd [1980] AC 952 R v Home Secretary: Ex parte Khawaja [1984] AC 74 Re Will of Gilbert (1946) 46 SR(NSW) 318 Setka v Abbott [2014] VSCA 287; (2014) 44 VR 352 Singleton v John Fairfax & Sons Ltd (Supreme Court (NSW), Hunt J, 20 February 1980, unrep, BC8000039) Standen v South Essex Recorders Ltd (1934) 50 TLR 365 State of New South Wales v Deren [1999] NSWCA 22; (1999) Aust Torts Reports ¶ 81-502 State of New South Wales v Williams [2014] NSWCA 177 The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 Toben v Milne [2014] NSWCA 200 Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 Watts v Times Newspapers Ltd [1997] QB 650 Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 Younan v Nationwide News Pty Ltd [2013] NSWCA 335 Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56 Texts Cited: Spencer Bower, A Code of the Law of Actionable Defamation, (2nd ed, 1923, Butterworth & Co) Michael Gillooly, The Law of Defamation in Australia and New Zealand, (1998, The Federation Press) The Hon Sir Anthony Mason, KBE, Chief Justice of the High Court, "The Use and Abuse of Precedent" (1988) 4 Australian Bar Review 93 Category: Principal judgment Parties: Bassem Abou-Lokmeh (Appellant) Harbour Radio Pty Ltd (First Respondent) Ray Hadley (Second Respondent) Mahassen Issa (Third Respondent) Representation: Counsel: CJ Dibb (Appellant) ATS Dawson and LE Barnett (Respondents)

Solicitors: Mitry Lawyers (Appellant) Banki Haddock Fiora (Respondents) File Number(s): 2015/271806 Publication restriction: No Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2015] NSWDC 172 Date of Decision: 19 August 2015 Before: Gibson DCJ File Number(s): 2015/65515

[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.]

[This headnote is not to be read as part of the Judgment] On 3 November 2014, during the Ray Hadley Morning Show on Radio 2GB, broadcast by Harbour Radio Pty Ltd (Harbour Radio), Mr Ray Hadley had a conversation with Ms Mahassen Issa, who was married to, but separated from, Mr Bassem Abou-Lokmeh. The interview between Mr Hadley and Ms Issa concerned events to which Ms Issa alleged she was subjected by Mr Abou-Lokmeh when she visited Lebanon with a new partner. It appeared that Ms Issa was invited to participate in the interview with Mr Hadley to respond to allegations made by her brother, Mr Issa, on the Ray Hadley Morning Show on an earlier occasion. Mr Issa had apparently said that while in Lebanon, Ms Issa married her new partner while still married to Mr Abou-Lokmeh. Ms Issa denied her brother's allegations and, in response to Mr Hadley's request, gave her version of the events. On 3 March 2015 Mr Abou-Lokmeh commenced proceedings in defamation against Harbour Radio, Mr Hadley and Ms Issa (the respondents) in respect of the November 2014 broadcast. He pleaded that the following imputations arose from the matter complained of and that each imputation was defamatory of him: "(a) [Mr Abou-Lokmeh] paid to have [Ms Issa] murdered. (b) [Mr Abou-Lokmeh] paid money to a lawyer in an attempt to have [Ms Issa] imprisoned. (c) [Mr Abou-Lokmeh] extorted thousands of dollars from [Ms Issa] to withdraw criminal charges." The respondents filed their defence on 1 June 2015. They pleaded, inter alia, a defence of contextual truth pursuant to s 26 of the Defamation Act 2005 (NSW) (2005 Act) and common law qualified privilege on the basis of a reply to an attack (reply to attack defence). The attack particularised was the one said to have been made by Mr Issa on the Ray Hadley Morning Show during the earlier broadcast. The contextual truth defence pleaded the following contextual imputations: "(i) [Mr Abou-Lokmeh] wanted [Ms Issa] to be killed. (ii) [Mr Abou-Lokmeh] conducted himself in such a way to cause [Ms Issa] to fear for her life. (iii) Alternatively to (ii): [Mr Abou-Lokmeh] caused [Ms Issa] to fear for her life. (iv) [Mr Abou-Lokmeh] acted dishonestly by registering his marriage with [Ms Issa] in Lebanon when he knew that [Ms Issa] had filed for a divorce." On 13 August 2015 the matter came before Gibson DCJ, on which occasion the respondents sought leave to file a proposed amended defence. In the course of the amendment application, Mr Abou-Lokmeh sought to strike out the contextual truth and reply to attack defences. Gibson DCJ granted the respondents leave to file the amended defence and declined to accede to Mr Abou-Lokmeh's strike-out application. Mr Abou-Lokmeh sought leave to appeal and to appeal from Gibson DCJ's decision. The principal issues on the appeal were whether her Honour erred: (i) in respect of contextual imputation (i): a. in holding that the matter complained of was capable of conveying contextual imputation (i) "in addition to" the imputations complained of by Mr Abou-Lokmeh; and b. taking into account on that issue the possibility the jury might find imputation (a) to be true when there was no defence of justification in respect of that meaning. (ii) in respect of contextual imputations (ii) and (iii): a. in holding that the matter complained of was capable of conveying contextual imputations (ii) and/or (iii) at all and/or in addition to Mr Abou-Lokmeh's imputations. (iii) in respect of contextual imputation (iv): a. in holding that contextual imputation (iv) was capable of so affecting Mr Abou-Lokmeh's reputation as to found a defence under s 26 of the 2005 Act to any of his imputations. (iv) in respect of the reply to attack defence: a. in holding that the reply to attack defence was open in circumstances where the defence did not plead that Mr Abou-Lokmeh was in any way responsible for, or complicit in, Mr Issa's attacks; and b. in holding that what Ms Issa said about Mr Abou-Lokmeh constituted a response to the particularised attack. Held, refusing leave to appeal: As to issue (i), per Payne JA (Gleeson JA agreeing), refusing leave to appeal (1) The primary judge was correct to conclude that contextual imputation (i) was carried in addition to the plaintiff's imputation (a). The particulars for contextual imputation (i) raised different matters to the defamatory publication and the incident it described: [109], [121] (2) Mr Abou-Lokmeh's challenge to the primary judge's refusal to strike out contextual imputation (i) raised no issue of principle or question of general public importance, such that leave to appeal should be refused: [110], [125] - [126] Per McColl JA (granting leave to appeal, but dismissing the appeal) (3) The Court's strike-out jurisdiction should not be exercised unless the contextual imputations pleaded are obviously untenable or "unarguably bad": [28] Younan v Nationwide News Pty Ltd [2013] NSWCA 335; General Steel Industries Inc v the Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 applied. (4) In order to be carried "in addition to" the plaintiff's defamatory imputations, the contextual imputations must differ in substance from the plaintiff's imputations: [30] Fairfax Media Publications v Zeccola [2015] NSWCA 329; Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 applied. (5) The primary judge did not err in refusing to strike out contextual imputation (i) where the particulars said to make contextual imputation (i) substantially true ranged over a greater factual matrix than the incident referred to in the matter complained of, satisfying the differ in substance test. Further, the general imputation that Mr Abou-Lokmeh wanted Ms Issa killed (and demonstrating his state of mind) was capable of being substantially different from a specific imputation that he paid to have her murdered (being an imputation relating to an act): [41] - [45] Singleton v John Fairfax & Sons Ltd (Supreme Court (NSW), Hunt J, 20 February 1980, unrep) applied. As to issue (ii), per McColl JA (Gleeson and Payne JJA agreeing) refusing leave to appeal (6) The primary judge did not err in refusing to strike out contextual imputations (ii) and (iii) because the subject matter of the matter complained of was capable of conveying them. Further, contextual imputations (ii) and (iii) were carried by other passages in the matter complained of, and differed in substance from Mr Abou-Lokmeh's imputations: [56], [108], [112] As to issue (iii), per McColl JA (Gleeson and Payne JJA agreeing) refusing leave to appeal (7) The primary judge did not err in refusing to strike out contextual imputation (iv). The issue whether by reason of the substantial truth of contextual imputation (iv) Mr Abou-Lokmeh's imputations did not further harm his reputation is one a jury should determine: [62], [108], [112] As to issue (iv), per Payne JA (Gleeson JA agreeing), refusing leave to appeal (8) The primary judge did not err in refusing to strike out the respondents' "reply to attack" defence where the defence was not so clearly untenable that it could not succeed. It is inappropriate for the Court to embark upon a summary determination of a legally arguable defence on the contingent basis advanced by Mr Abou-Lokmeh: [109], [128], [137] Per McColl JA (granting leave to appeal, but dismissing the appeal) (9) The primary judge did not err in refusing to strike out the respondents' "reply to attack" defence. It was arguable that the defence could succeed if it was established that Mr Abou-Lokmeh was complicit in the attack, or if the references to him in Ms Issa's statements were commensurate with the occasion of qualified privilege or relevant to the matters that gave rise to the occasion. Whether the statements Ms Issa made to vindicate her reputation in response to the alleged attack were commensurate with, or relevant to, the occasion required a careful scrutiny of all the circumstances of the publication to determine whether the defence was made good: [82], [97], [101], [102]. Coward v Wellington (1836) 7 Car & P 531; 173 ER 234; Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503; Harbour Radio Pty Ltd v Trad [2012] HCA 44; (2012) 247 CLR 31 considered.

Judgment

McCOLL JA: The applicant, Bassem Abou-Lokmeh, seeks leave to appeal and to appeal from a judgment of Gibson DCJ granting the first, second and third respondents, respectively Harbour Radio Pty Ltd (Harbour Radio), Ray Hadley and Mahassen Issa, leave to file a proposed amended defence to defamation proceedings commenced by Mr Abou-Lokmeh, and rejecting his application to strike out parts of that defence. [1]
The leave application was originally listed for hearing before Basten and Simpson JJA on 23 March 2016, on which occasion their Honours referred the application to a Full Court to be heard as a concurrent matter with the appeal if leave be granted. For the reasons that follow, I am of the view that while there should be a limited grant of leave to appeal, the appeal should be dismissed with costs.

Factual background

Mr Hadley is the presenter of the Ray Hadley Morning Show on Radio 2GB. On 3 November 2014, in the course of a broadcast on that show, Mr Hadley had a conversation with Ms Issa, who was married to, but separated from, Mr Abou-Lokmeh. A transcript of the broadcast is set out in the Schedule to these reasons.
It suffices to describe the subject of the broadcast to say that it was an interview between Mr Hadley and Ms Issa concerning events to which the latter alleged she was subjected by Mr Abou-Lokmeh when she visited Lebanon with a new partner. On an earlier occasion, Harbour Radio had broadcast an interview between Mr Hadley and Ms Issa's brother, Mr Issa. Mr Issa apparently said during that interview that, while in Lebanon, Ms Issa married her new partner while still married to Mr Abou-Lokmeh. It appears that Ms Issa was invited to participate in the interview with Mr Hadley to respond to Mr Issa's allegations. She denied them and, in response to Mr Hadley's request, gave her version of the events. [2] Mr Abou-Lokmeh alleges that Ms Issa defamed him while doing so.
On 3 March 2015 Mr Abou-Lokmeh commenced proceedings in defamation in respect of the November 2014 broadcast. He pleaded that the following imputations arose from the parts of the matter complained of indicated in the brackets and that each imputation was defamatory of him: "(a) [Mr Abou-Lokmeh] paid to have [Ms Issa] murdered (the matter complained of as a whole and in particular lines 60-62). (b) [Mr Abou-Lokmeh] paid money to a lawyer in an attempt to have [Ms Issa] imprisoned (the matter complained of as a whole and in particular lines 60-62). (c) [Mr Abou-Lokmeh] extorted thousands of dollars from [Ms Issa] to withdraw criminal charges (the matter complained of as a whole and in particular lines 68-74 and 220-228)." [3]
The respondents filed their defence on 1 June 2015. They pleaded, inter alia, a defence of contextual truth pursuant to s 26 of the Defamation Act 2005 (NSW) (2005 Act) and common law qualified privilege on the basis of reply to an attack (reply to attack defence), both of which defences were the subject of the strike-out application. The attack particularised was one said to have been made by Mr Issa on the Ray Hadley Morning Show during the earlier broadcast to which I have referred. The earlier broadcast was not in evidence before the primary judge or in this Court, however portions of it were extracted as particulars to the reply to attack defence. In addition, the respondents pleaded that imputations (b) and (c) were substantially true and a defence of justification and qualified privilege pursuant to s 25 and s 30 of the 2005 Act respectively.
Section 26 of the 2005 Act provides a defence to the publication of defamatory matter if the defendant proves that the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
The contextual truth defence pleaded the following contextual imputations: "(i) [Mr Abou-Lokmeh] wanted [Ms Issa] to be killed. (ii) [Mr Abou-Lokmeh] conducted himself in such a way to cause [Ms Issa] to fear for her life. (iii) Alternatively to (ii): [Mr Abou-Lokmeh] caused [Ms Issa] to fear for her life. (iv) [Mr Abou-Lokmeh] acted dishonestly by registering his marriage with [Ms Issa] in Lebanon when he knew that [Ms Issa] had filed for a divorce."
In July 2015 the respondents sent Mr Abou-Lokmeh a proposed form of amended defence and indicated they would seek leave to file it. Leave was granted by Order 1 of the primary judgment. Although Mr Abou-Lokmeh now seeks leave to appeal from the primary judge's order granting the respondents leave to file the amended defence, the portions of the amended defence relevant to Mr Abou-Lokmeh's application for leave to appeal were in the same form in the original defence. Nevertheless, in the course of the amendment application Mr Abou-Lokmeh sought to strike out the contextual truth and reply to attack defences. [4]
The primary judge summarised Mr Abou-Lokmeh's submission that the contextual truth defence should be struck out as follows: "(a) Contextual imputation (i) is incapable of being conveyed 'in addition to' (s 26) the plaintiff's imputation (a); (b) Contextual imputations (ii) and (iii) are objected to on the same basis, but additionally (and somewhat inconsistently) on the basis that they are incapable of being conveyed; (c) Contextual imputation (iv) is asserted to be incapable of 'swamping' the plaintiff's imputations." [5]
Mr Abou-Lokmeh submitted that the reply to attack defence should be struck out because it was Mr Issa, not he, who mounted any attack.
The strike-out application failed.

Leave to appeal

Mr CJ Dibb, who appeared for Mr Abou-Lokmeh on appeal and below, submitted that leave to appeal should be granted because the appeal raised important issues relating to the defences to defamation proceedings and had good prospects of success. He contended the appeal should be dealt with at the interlocutory stage to prevent the proceedings from becoming an inappropriately wide-ranging enquiry into the whole course of Mr Abou-Lokmeh and Ms Issa's marriage, and to give effect to what he described as the "overriding objective and proportionality principle" contained in Civil Procedure Act 2005 (CPA), ss 56 - 60.
Mr ATS Dawson, who appeared for the respondents on appeal with Ms Barnett, but not below, submitted that the primary judge's decision was an exercise of discretion in relation to a matter of practice and procedure and was not of the kind that warranted appellate intervention. He contended that the application for leave to appeal involved no question of principle, and there would be no injustice should the matter proceed to trial on the basis of the amended defence.
As Mr Dawson submitted, the primary judge's decision concerned matters of practice and procedure. Thus, the application for leave to appeal attracts the proposition articulated by Jordan CJ in Re Will of Gilbert [6] that if a tight rein is not kept upon allowing appeals to an appellate court on such matters, the result would be disastrous for the proper administration of justice. Accordingly, appellate courts should exercise particular caution in reviewing decisions pertaining to practice and procedure. [7]
An applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. [8] Generally speaking, it is only appropriate to grant leave to appeal in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable. [9]
In my view, for the reasons which follow, the application to strike out contextual imputation (i) and the reply to attack defence raises issues of principle warranting a grant of leave to appeal, but the application relating to contextual imputations (ii) - (iv) does not.

Contextual imputation (i)

Mr Dibb submitted before the primary judge that the matter complained of did not convey any imputation of killing, other than that identified in the passages pleaded in respect of imputation (a) in the statement of claim. He contended that contextual imputation (i) was essentially the same as imputation (a) and was not therefore reasonably capable of being found by a jury to be "in addition to" his imputation (a). [10]
Ms Barnett, who appeared for the respondents below, submitted that imputation (a) related to a specific act, namely Mr Abou-Lokmeh allegedly giving his lawyer a large amount of money with orders either to have Ms Issa put in jail or killed, whereas contextual imputation (i) pleaded a condition, and related more generally to Mr Abou-Lokmeh's state of mind and, in particular, his animus against Ms Issa. She further contended that none of Mr Abou-Lokmeh's imputations dealt with his state of mind, although the thrust of the matter complained of was his jealousy-fuelled quest for vengeance against Ms Issa, which led him to engage in a series of acts designed to harm or imprison her, only one of which was to pay his lawyer to have her killed. [11]
The primary judge made the following finding in respect of contextual imputation (i): "[13] The problem that I have with this submission is that contextual imputation (i) is very specific - it refers to [Mr Abou-Lokmeh] wanting to have [Ms Issa] killed, rather than to his having a revengeful state of mind, in that he would stop at nothing, including having her killed, or an imputation of similar effect. In its present form, contextual imputation (i) comes perilously close to being a restatement of [Mr Abou-Lokmeh's] imputation (a). Is it capable of being 'in addition to' it? [14] The imputation in its current form is perilously close to [Mr Abou-Lokmeh's] imputation (a); what saves it, in my view, is that, whether the jury finds [his] imputation (a) true or not, it is still open to a jury to find that [Mr Abou-Lokmeh] wanted [Ms Issa] dead or would stop at nothing to achieve this, whether he acted on that wish or not. In those circumstances, contextual imputation (i) is an imputation 'in addition to' [Mr Abou-Lokmeh's] imputation."
The grounds of appeal contend that the primary judge erred: 1. in holding that the matter complained of was capable of conveying contextual imputation (i) in addition to the imputations complained of by Mr Abou-Lokmeh; and 2. in taking into account on that issue the possibility the jury might find imputation (a) to be true when there was no defence of justification in respect of that meaning.
In this Court Mr Dibb essentially repeated the submissions made below. He accepted that contextual imputation (i) was carried by the matter complained of because the allegation that Mr Abou-Lokmeh paid money to a lawyer to have Ms Issa murdered necessarily conveyed that he wanted her killed. However, he submitted that that imputation did not arise separately and "in addition to" imputation (a). He also argued that the primary judge erred in taking into account the fact that the jury might find imputation (a) to be proved true, given that the respondents did not plead a justification defence in respect of that imputation.
As a general proposition, Mr Dawson contended in his written submissions that in order for Mr Abou-Lokmeh's strike out application to succeed in respect of the contextual imputations, he was required to establish that each meaning of the contextual imputations pleaded was not one any reasonable jury, properly instructed, could find to be carried "in addition to" his imputations. Mr Dawson submitted that this was a very high bar. If it was a question upon which reasonable minds might differ, he argued the contextual imputations must be left to the jury.
Turning to contextual imputation (i), Mr Dawson repeated the submission made below that that imputation was "in addition to" imputation (a) because it concerned Mr Abou-Lokmeh's state of mind, rather than the specific act attributed to him in imputation (a). He submitted it was open to a jury to find the requisite difference existed.
Secondly, Mr Dawson submitted that the primary judge's reference to the possibility of imputation (a) being found to be true was not infelicitous. Rather, he contended her Honour was applying the test of whether contextual imputation (i) differed in substance from imputation (a) by looking at the evidence the respondents would rely upon to seek to justify contextual imputation (i). He submitted that the particulars of the contextual truth defence demonstrated that the respondents would seek to justify contextual imputation (i) by proving a number of occasions on which Mr Abou-Lokmeh told Ms Issa either that he would kill her or hoped that she would die, or was suspected to have tampered with Ms Issa's car with a view to causing it to explode or start a fire. He submitted that those particulars demonstrated the substantial difference between contextual imputation (i) and imputation (a) and, accordingly, that it was carried "in addition to" imputation (a).
Mr Dawson also submitted that contextual imputation (i) was of a general nature, and therefore of a Maisel type [12] compared to the specific nature of imputation (a) and that this was another reason the "in addition to" test was satisfied.
Finally, in this context Mr Dawson submitted that the Court should not assume a jury would conclude imputation (a) was conveyed. If a jury were to form the view that imputation (a) was not conveyed, he argued it would be open to the respondents to rely on contextual imputation (i) in relation to such other of Mr Abou-Lokmeh's imputations as were found to be conveyed and from which it differed in substance.

Conclusion

The Court's strike out jurisdiction should not be exercised in Mr Abou-Lokmeh's favour unless the contextual imputations are obviously untenable, [13] or "unarguably bad". [14] The Court should "take the defendant's case at its highest as to which of the plaintiff's imputations were conveyed (that is, to compare the particulars of contextual truth with the least serious of the plaintiff's imputations)." [15]
A defence of contextual truth must defeat the whole defamatory matter of which the plaintiff complains, that is to say, all the plaintiff's stings or imputations. [16] The tribunal of fact must be able to conclude that, because of the substantial truth of the contextual imputations, the defamatory imputations which constitute the plaintiff's cause of action do not further harm the plaintiff's reputation. The focus is on comparing the contextual imputations with the plaintiff's cause of action. [17] As McCallum J explained in McMahon, [18] "the defence does not compare imputation with imputation. [Its] essence … is to permit the defendants to put the plaintiff's imputations in their factual context according to the content of the whole of the article."
In order to be carried "in addition to" the plaintiff's defamatory imputations, the contextual imputations must differ in substance from the plaintiff's imputations. [19] As I observed in Zeccola (at [48]), in Ange v Fairfax Media Publications Pty Ltd, [20] Nicholas J explained that the words "in addition to" in s 26(a) removed the confusion under s 16 of the Defamation Act 1974 (NSW) (1974 Act) about what was required to establish a contextual truth imputation as a defence. In Ange, Nicholas J said of the "differ in substance" test: "[28] The test is straightforward enough, and it would be unhelpful to embroider it with some idiosyncratic gloss. The difficulty sometimes lies in its application in a particular case. Ultimately, the result of the evaluation process is one of impression taking into account the defamatory quality of each party's imputations with regard to the contents of the matter complained of which conveys them. In order to consider whether the defendants' contextual imputations are capable of being conveyed by the matter complained of at the same time as and in addition to the imputations pleaded by the plaintiff it is necessary to establish '… just what is the precise act or condition which is asserted of or attributed to the plaintiff both by the plaintiff's own imputations and by the defendants' contextual imputations' (Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, p 41E). The scope of an imputation must be taken to include all imputations which do not differ in substance, or are less injurious, or which are but shades, nuances, and gradations of meaning of substantially similar imputations. (Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, p 771, Chakravati v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 pp 24, 60, 139.) Where the plaintiff's imputations are more than one it will be necessary to consider all of them, separately and in combination, to determine whether a contextual imputation is carried in addition to them. The exercise requires a commonsense approach to an understanding of the publication which is expected of the ordinary reasonable reader."
In addition to the matters to which Nicholas J referred, the question whether a contextual imputation differs in substance from the plaintiff's imputation may be determined either by identifying what the defendant must prove in order to justify the contextual imputation, [21] or by asking "what may be proved by way of justification to each such imputation" (emphasis in original). [22]
The "differ in substance" test can also be satisfied by a defendant pleading a contextual imputation in general terms in the sense permitted by Maisel. [23] As I have said, this is one way the respondents put their argument in support of contextual imputation (i).
Hunt J explained the Maisel approach in the contextual truth context in Allen as follows: "If the matter complained of conveys to the same ordinary reasonable reader two imputations at the same time, one of a general nature (of a Maisel type) and another of a specific nature which, even although related to the same subject matter of the general imputation, differs in substance from it, the policy behind s 16 requires that the defendant be permitted to plead the former as a contextual imputation to the plaintiff's cause of action based upon the latter." [24]
The "policy" of which Hunt J was speaking was that introduced by the contextual truth defence. Under that defence as available both pursuant to s 16 of the 1974 Act and s 26 of the 2005 Act, a plaintiff cannot by selective pleading of a less serious imputation, when a more serious one is carried by the matter complained of, prevent a defendant from seeking to justify that more serious imputation. That had been the position at common law. [25]
The requirement that the contextual imputation(s) be conveyed at the same time as the plaintiff's imputation(s) is to enable the tribunal of fact to "weigh or … measure the relative worth or value of the imputation or imputations for which each party contends". [26]
The impressionistic nature of the differ in substance test to which Nicholas J referred in Ange can be illustrated as follows.
In Hyndes v Nationwide News Pty Limited, [27] McCallum J accepted that it was possible for words to convey an act and, separately, a condition. However, her Honour held that in the circumstances of that case, the condition which the defendant sought to rely upon as a contextual imputation (willingness to lend money to persons the plaintiff believed to be drug dealers) to the plaintiff's imputations (which in various ways alleged that he had lent money to persons engaged in drug dealing) was necessarily implicit in the act identified in the plaintiff's imputations. Accordingly, in her Honour's view, the contextual imputations could not be said to arise at the same time, and in addition to, the plaintiff's imputations.
McCallum J distinguished State of New South Wales v Deren, [28] in which Priestley JA (with whom Powell and Stein JJA agreed on this issue) held that the State's contextual imputation that the plaintiff was a child molester, differed in substance from the plaintiff's imputation which directly accused the plaintiff of particular sexual assaults on particular young children coming from a particular location during a particular time. His Honour accepted that it may be that the contextual imputation could be "derived from" the plaintiff's imputation, but said that even if that were right, and even if the ideas conveyed by the parties' respective imputations had "much in common", it would not follow that the meaning of the two imputations was the same. [29] His Honour's reasoning reflects that of Hunt J in Allen to which I have referred concerning the same subject matter. [30]
As Hyndes and Deren demonstrate, the question whether a particular charge of wrongdoing carries a general charge "may depend on the context in which the words are used" and the "the gravity of the misconduct imputed in the particular charge". [31]
Thus, the mere fact that contextual imputation (i) may be "derived from" (which expression, in my view, would comprehend the notion of being "implicit" in another imputation) in imputation (a), does not answer the question, as Mr Dibb's submissions tended to assume, whether the former is "in addition to" the latter.
There are, accordingly, a number of reasons why the primary judge did not err in refusing to strike out contextual imputation (i).
First, while imputation (a) and contextual imputation (i) are derived from that part of the matter complained of in which Ms Issa alleged Mr Abou-Lokmeh paid to have her killed, the particulars said to make contextual imputation (i) substantially true range over a greater factual matrix than the incident referred to in the matter complained of, unrelated to the specific instance identified in the matter complained of. [32] That goes to satisfying the differ in substance test, at least at a strike-out stage. [33]
Secondly, contextual imputation (i) falls within the principles Hunt J identified in Allen. Here, I would accept the respondents' submission, that imputation (a) pleads an imputation of a specific nature, that Mr Abou-Lokmeh paid to have Ms Issa murdered, whereas contextual imputation (i), although related to the same subject matter, contends that he "wanted her killed" and is of a general nature. Contextual imputation (i) arguably conveys "a different, and potentially broader, sting" than imputation (a), [34] thus satisfying the differ in substance test.
Thirdly, in most cases a general allegation will differ in substance from the particular. [35] An imputation that Mr Abou-Lokmeh wanted Ms Issa killed (and demonstrating his state of mind) is capable at a strike out stage of being substantially different from an imputation that he paid to have her murdered (being an imputation relating to an act). [36]
Fourthly, in this case in my view the gravity of imputation (a) is such that the general charge contained in imputation (i) is capable of being conveyed in addition to it.
Finally, I do not accept that the primary judge's reference [37] to the possible fate of imputation (a) distracted her Honour from applying the correct test.
I am conscious that the question whether an imputation amounts to a general charge against the character of a plaintiff is one to be approached with care, to avoid unduly opening up avenues for defences of justification and contextual truth which would otherwise be barred to a defendant and thus prolong the hearing of defamation cases. [38]
However, in my view Mr Abou-Lokmeh has not established that contextual imputation (i) is obviously untenable or unarguably bad. It is at least arguable that the jury could find that Mr Abou-Lokmeh's imputation (a) and contextual imputation (i) differ in substance. [39] That is sufficient at the strike-out stage to make it inappropriate to strike it out. The primary judge did not err in refusing to do so.

Contextual imputations (ii) and (iii)

Mr Dibb submitted before the primary judge that neither of contextual imputations (ii) and (iii) was capable of being conveyed or conveyed by any part of the matter complained of other than the same passages which conveyed imputation (a). Accordingly, he contended neither contextual imputation could be conveyed "in addition to" his imputations. [40]
Ms Barnett submitted contextual imputations (ii) and (iii) were conveyed by passages of the matter complained of other than those which conveyed imputation (a). She relied upon what she contended was a discernible sound of fear in Ms Issa's voice during the interview which would be apparent to the ordinary reasonable listener. She also relied upon those passages in which Ms Issa said that she could have been one of many women that are still trapped overseas: "I would have been one of them Ray", as well as "I would have been another number" as supporting the proposition Ms Issa was in fear by reason of Mr Abou-Lokmeh's conduct. [41]
The primary judge declined to strike out contextual imputations (ii) and (iii), saying: "[21] The tone of voice of a person can be an important factor in determining meaning, particularly in radio broadcasts: Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [197]; Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 at [56]; see also, in relation to a racial vilification claim, Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 at [67] - [68] … [22] Additionally, the subject matter should be taken into account. [Ms Issa] paints a picture of [Mr Abou-Lokmeh] as a man who will stop at nothing in his reprisals against her, and where the dangers she was thereby exposed to made her fear for her life. [23] The combined effect of the language, subject matter and tone of voice of [Ms Issa] are sufficient, on a capacity basis, for either of these contextual imputations to be conveyed, and they will go to the jury."
Mr Abou-Lokmeh's notice of appeal contends the primary judge erred in holding that the matter complained of was capable of conveying contextual imputations (ii) and/or (iii) at all and/or in addition to his imputations.
Again, Mr Dibb essentially repeated the arguments advanced below. He contended that contextual imputations (ii) and (iii) were not capable of being carried by the matter complained of at all, or in addition to imputation (a). He submitted there was nothing in the matter complained of to suggest Ms Issa was "at any time in fear of her life" or that she was aware at the time of the broadcast that Mr Abou-Lokmeh had allegedly paid to have her killed. He contended that listening to the broadcast "reveals not the slightest fear or concern by [the] tone of [her] voice". He argued that if it were thought that Ms Issa's voice indicated, by itself or in combination with other factors, that she was afraid, there was nothing in the matter complained of to suggest that any conduct on Mr Abou-Lokmeh's part caused such feelings. Mr Dibb did not address any submissions to the "in addition to" point.
In his oral submissions, Mr Dibb contended that the primary judge's reasoning in relation to contextual imputations (ii) and (iii) was so erroneous that there was latent error in the sense explained in House v R [42] such as would warrant appellate intervention.
Mr Dawson supported the primary judge's reasoning. He submitted that the question of the tone of the broadcast was quintessentially a matter for the jury. He contended that the primary judge was correct in finding that the combined effect of the language, subject matter and tone used by Ms Issa were sufficient, at least on a capacity basis, for her Honour to conclude that both contextual imputations (ii) and (iii) were capable of being carried by the broadcast. He also argued that each of these contextual imputations conveyed a different and distinct sting that was not captured by Mr Abou-Lokmeh's imputations. He relied on the fact that contextual imputations (ii) and (iii) related to Ms Issa's state of mind rather than the acts referred to in Mr Abou-Lokmeh's imputations. He also drew attention to a number of other passages in the matter complained of similar to those to which the primary judge referred (at [22]) as supporting the capacity of the matter complained of to carry these contextual imputations.

Conclusion

I would refuse leave to appeal in relation to these contextual imputations. In my view Mr Abou-Lokmeh has not identified any issue of principle, question of public importance or demonstrated that an injustice has occurred by reason of the primary judgment. The passages to which the respondents refer are capable of demonstrating that Ms Issa was left in fear by a number of matters, not least that Mr Abou-Lokmeh had paid to have her killed. It is a question for the jury whether they hear the tone of fear the respondents contend was apparent in her voice. Generally, as the primary judge held, the subject matter of the matter complained of, which was to a large extent about Mr Abou-Lokmeh's conduct directed to keeping Ms Issa trapped in a foreign country against her will, was capable of conveying contextual imputations (ii) and (iii). Further, contextual imputations (ii) and (iii) are carried by other passages in the matter complained of. Finally, they differ in substance from Mr Abou-Lokmeh's imputations in the sense I have explained. The respondents seek to justify these contextual imputations by proof of matters unrelated to the two incidents to which Mr Abou-Lokmeh's imputations relate.

Contextual imputation (iv)

At the strike-out application, Mr Dibb challenged the "seriousness" of contextual imputation (iv), [43] rather than the capacity of the matter complained of to carry it. He submitted that an imputation that Mr Abou-Lokmeh dishonestly registered his marriage in Lebanon when he knew Ms Issa had filed for divorce was "self-evidently" much less serious than any of his imputations. He further submitted that, pursuant to what he described as "the principle of proportionality" and the court's overriding obligation pursuant to CPA, s 56 to ensure that proceedings be conducted with a view to determining the real issues in a "just, cheap and quick" fashion, the primary judge should refuse to permit contextual imputation (iv) to stand. [44]
The primary judge identified the sting in contextual imputation (iv) as being that Mr Abou-Lokmeh dishonestly abused the legal process, in that he had his marriage to Ms Issa registered in Lebanon even though he knew his marriage was over and that she had filed for divorce. [45] Her Honour continued: "[26] Knowingly twisting, turning and abusing the legal process is conduct squarely placed at the feet of [Mr Abou-Lokmeh] by this contextual imputation. Abuse of the process of any court is conduct which ordinary right-thinking members of the community may view very seriously. Independently of any examination of the particulars in support (this being the step Mr Dibb requested me to take), I am satisfied that the question of whether such an imputation is capable of 'swamping' (to use Mr Dibb's word) [Mr Abou-Lokmeh's] imputations, in accordance with the principles explained in John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541, is a matter which should be left to the jury. [27] This finding means that it is unnecessary for me to determine the two bases put forward by Mr Dibb to support his argument, namely that the particulars of justification support such a finding, and his proportionality argument. …"
Accordingly, her Honour declined to strike out contextual imputation (iv).
Mr Abou-Lokmeh contended in his amended summons seeking leave to appeal that the primary judge erred in holding that contextual imputation (iv) was capable of so affecting Mr Abou-Lokmeh's reputation as to found a defence under s 26 of the 2005 Act to any of his imputations. Tellingly, there was no ground of appeal in the draft notice of appeal relating to this contextual imputation.
Mr Dibb did not advance any written submissions in respect of contextual imputation (iv). In oral argument, he conceded that Mr Abou-Lokmeh was "not particularly troubled" by this contextual imputation.

Conclusion

I would refuse leave to appeal in relation to contextual imputation (iv). In my view Mr Abou-Lokmeh has not identified any issue of principle, question of public importance or demonstrated that an injustice has occurred by reason of any error in the primary judgment. As the primary judge said, the only issue Mr Abou-Lokmeh sought to canvass was whether by reason of the substantial truth of contextual imputation (iv) his imputations did not further harm his reputation. [46] That is an issue a jury should determine by comparing contextual imputation (iv) with such of Mr Abou-Lokmeh's imputations as are found to have been carried by the matter complained of.

Reply to attack defence

The primary judge dealt with Mr Abou-Lokmeh's attempt to strike out the reply to attack defence as follows: "[30] The proposed amended defence raises, at paragraph 8(d), a defence of common law qualified privilege, on the basis of reply to an attack. The terms of the matter complained of could not be clearer; the third defendant is answering the claims made by her brother about her on the same radio station some days earlier. [31] Mr Dibb submits, however, that this defence cannot be maintained because it is not [Mr Abou-Lokmeh] who mounted the attack, but [Ms Issa's] brother. He submits that, while Dixon J, in Loveday v Sun Newspapers (1938) 59 CLR 503 noted that the privilege would apply to third parties, citing Coward v Wellington [1837] E R 58; 7 Car & P 59, these were obiter remarks in a dissenting judgment, and the facts and issues in Coward v Wellington did not support such a contention. In David McNicol v the ACT Health Authority [1988] ACTSC 55 Kelly J restricted the ratio in Coward v Wellington to being authority for the proposition that a person attacked may defend himself by showing that the blame is properly attributable to some other person. If this is correct, Mr Dibb submits, then this decision is, at most, authority for the proposition that where a reply to an attack defames a third party (rather than the person making the attack) is it privileged only insofar as it seeks to throw on that third party some blame that the original attack sought to be laid upon [Ms Issa]. This would restrict [Ms Issa's] reply to something like 'it wasn't me who deserted my children, it was my husband', according to Mr Dibb, which falls well short of the imputations pleaded here. [32] This is not how the statements of Dixon J in Loveday v Sun Newspapers has been approached by courts in New South Wales: see, for example, Palmer v Belan [1999] NSWSC 187 at [151]; Trad v Harbour Radio Pty Ltd (2011) 279 ALR 183 at [108] (defendant could reply not only on behalf of his principal but also another reporter). The question is, as Kirby J pointed out at [151] and the Court of Appeal pointed out at [111] - [113] respectively, whether the responding remarks are 'not wholly unconnected with the defence' and not 'mere retaliation'. [33] Mr Dibb's submission in fact tacitly acknowledges that the responding party may make a reply to attack which defames a third party; his real submission appears to be that [Ms Issa] went too far. That is an issue for the trial, where the parties can refer to the earlier radio broadcast to which [Ms Issa] was replying (which I was not given) and such other relevant evidence as may be before the court. I do not propose to analyse the matter complained of to determine (as the Court of Appeal did in Trad v Harbour Radio Pty Ltd) whether the reply to attack is capable of applying to each of the imputations, not least because this step was not taken in the application before me. [34] Additionally, the circumstances in which a defence, especially a defence of qualified privilege, will be struck out on an interlocutory application would have to be extreme: Waterhouse v Perkins [2000] NSWSC 641 at [18] - [19]; Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139 (refusal to strike out defence of triviality for a mass media publication); Combe v Santamaria (1986) 84 FLR 292. This is not one of those occasions."
Accordingly, her Honour refused Mr Abou-Lokmeh's application to strike out the defence.
Mr Dibb submitted the primary judge erred in holding that the reply to attack defence was arguable. He contended that the attacks particularised in the amended defence as giving rise to the occasion for response were two broadcasts in which Mr Issa made remarks about Ms Issa. However, the defence did not plead that Mr Abou-Lokmeh was in any way responsible for, or complicit in, Mr Issa's attacks. Accordingly, he argued the reply to attack defence was not open. He also contended that what Ms Issa said about Mr Abou-Lokmeh did not constitute a response to the particularised attack, giving as an illustration Ms Issa's assertion that Mr Abou-Lokmeh had paid to have her killed.
In his oral submissions, Mr Dibb contended her Honour erred in referring to Dixon J's statement in Loveday v Sun Newspapers Ltd [47] as his Honour was writing in dissent, his statement had been "read too widely", and, in any event, his statements were not essential to his reasoning to his conclusion. He relied on Kelly J's reasons in McNicol v ACT Health Authority, [48] which he contended were persuasive, as standing in the way of accepting Dixon J's statement and as more accurately reflecting what had been said in Coward v Wellington. [49] He also submitted that, in contrast to Loveday, the respondents did not allege Mr Abou-Lokmeh was complicit in Mr Issa's attack.
Mr Dawson characterised Mr Abou-Lokmeh's submissions as raising two complaints in respect of the reply to attack defence. First, that the defence did not allege he was complicit in the attack. Secondly, that Ms Issa's reply was unconnected with the particularised attack. Mr Dawson submitted that the principal difficulty with both complaints was that they raised factual issues for trial.
In respect of Mr Dibb's "complicity" submission, Mr Dawson contended that given the attack was an exposition of the dispute between Mr Abou-Lokmeh and Ms Issa which was more than favourable to Mr Abou-Lokmeh, and was made by Mr Issa against her, it was at least "on the cards" that he was complicit in it. He argued that pre-trial processes and cross-examination would reveal the extent of that complicity. Further, Mr Dawson submitted it was clearly arguable that the reply to attack defence was available, whether or not Mr Abou-Lokmeh was complicit in the attack.
In respect of the second complaint, Mr Dawson submitted that, given the subject matter of the attack, it was difficult to see how Ms Issa could have replied without defaming Mr Abou-Lokmeh.
Mr Dawson submitted that Harbour Radio Pty Ltd v Trad [50] established that the question of whether the reply was sufficiently connected to the attack, and therefore sufficiently relevant to the occasion, was a matter for the jury at trial.
Finally, Mr Dawson submitted the reply to attack defence could not be said to be so manifestly hopeless or untenable as to satisfy the General Steel summary dismissal test.

Conclusion

Pursuant to s 22(2) of the 2005 Act, a jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established. Nothing in s 22, however, requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer. [51]
At general law it was for the judicial officer to determine whether any publication took place on an occasion of qualified privilege and, too, to be satisfied that there was sufficient evidence to go to the jury on matters within its province. [52] It was for the jury to determine whether the communication was privileged as a matter of fact, that is to say, whether the defendant used the occasion for the reason for which it was recognised or, in the case of reply to attack, whether the matter complained of exceeded legitimate bounds in the vindication either of character or proprietary interest. [53] It was also for the jury to determine any disputed questions of fact upon which the matter for judicial determination depended. [54]
The width of the principles governing qualified privilege for defamation makes it necessary, in deciding whether they apply, to make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication, involving a consideration of all the circumstances leading up to publication. [55]
In determining whether the defendant's statements purportedly in reply to an attack are "commensurate with the occasion", [56] "no nice scales should be used." [57] In Turner v Metro-Goldwyn-Mayer Pictures Ltd, [58] Lord Oaksey drew "an analogy between the criminal law of self defence and a man's right to defend himself against written or verbal attacks" in both of which cases "he is entitled, if he can, to defend himself effectively, and he only loses the protection of the law if he goes beyond defence and proceeds to offence", adding "[t]he law does not concern itself with niceties in such matters. If you are attacked by a prize fighter you are not bound to adhere to the Queensberry rules in your defence." However, the privilege will be lost if what is published is not "reasonably appropriate to [the] duty or right", or is "unconnected with and irrelevant to the main statement". [59]
In Trad, the plurality (Gummow, Hayne and Bell JJ) approved Dixon J's statement of principle at first instance in Penton concerning the foundation of the common law qualified privilege defence of reply to an attack. [60] Dixon J said: "The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence." [61] (emphasis added)
The plurality also referred, [62] with apparent approval, to Dixon J's statement in Mowlds v Fergusson, [63] relevantly that: "Any communication which the defendant might make tending to vindicate his conduct or rehabilitate his reputation would be a subject of privilege provided that the person to whom he made the communication were one proper to receive it. It is commonly said that the recipient must possess an interest or be under a duty which corresponds with the interest of the person making the communication: See, eg, White v J & F Stone (Lighting and Radio) Ltd, a case with which Somerville v Hawkins and Taylor v Hawkins should be compared. Where the defamatory matter is published in self-defence or in defence or protection of an interest or by way of vindication against an imputation or attack, the conception of a corresponding duty or interest in the recipient must be very widely interpreted. In Adam v Ward the interest of every citizen in the welfare of the army seems to have been considered enough by Lord Atkinson, who alone of their Lordships emphasized the necessity of reciprocity." (footnotes omitted)
Where an attack is published to the public at large, defence to attack qualified privilege extends to publication of the answer in the newspapers or in any other manner that would reach the public generally. The reason for the privilege of the newspaper publisher is that it is right and for the common convenience and welfare of society that the publisher should lend the aid of the newspaper to the party who is entitled publicly to repel the attack or answer the criticism. [64] In this context, however, "the consideration of what is relevant to the attack requires particular care [as] [t]he response must be commensurate with an occasion which is in an exceptional category." [65]
The most obvious form of a defence to attack qualified privilege is where the defendant has responded to the plaintiff's attack in order to vindicate his or her reputation and, in the course of doing so, has defamed the plaintiff. Subject to the response satisfying the principles referred to above, and the plaintiff not being able to establish malice operative in the publication, the defence is established.
However, the privilege is not so confined.
First, the attack need not expressly be made by the plaintiff. Rather, as is apparent from Loveday, it may be sufficient if it can be found that an attack ostensibly in another's name was authorised by the plaintiff or, to use the language of counsel in this case, if it can be found that the plaintiff was complicit in the attack. In such circumstances the plaintiff can also be seen to have been responsible for the attack. [66] I deal with Loveday in more detail below. However, in this respect, there is force in Mr Dibb's complaint that the respondents have not pleaded that Mr Abou-Lokmeh was complicit in the attack on Ms Issa. Rather, the particulars of the reply to attack defence set out the substance of the interview in which the attack was made. They conclude by asserting the matter complained of was a "reply to the attack by Mr Issa."
Accordingly, at this stage, the submission that the respondents may establish Mr Abou-Lokmeh was complicit in the attack appears to be a matter of speculation. It cannot be dismissed however as groundless. Mr Abou-Lokmeh and Ms Issa were married for many years before the events which led to publication of the matter complained of. It cannot be said that there is "no possibility" of circumstances emerging demonstrating Mr Abou-Lokmeh's involvement in Mr Issa's attack. [67]
While this may be a sufficient basis on which to dispose of the challenge to the reply to attack defence, in case minds may differ, the alternative basis on which the respondents put their case should also be considered.
Secondly, the response to the attack need not necessarily be made by the person attacked. Rather, the respondent may be a body such as the Army Council in Adam v Ward, which had a duty to investigate the plaintiff's attack and, if appropriate, vindicate the victim to the world. [68] In that case, the plaintiff was formerly an officer in a cavalry regiment who was subsequently elected a member of Parliament. He gave a speech in the House of Commons, falsely charging the General commanding the brigade of which his late regiment formed part with sending confidential reports to Army Headquarters about officers under his command which contained wilful and deliberate misstatements. The General referred the matter to the Army Council as he was required to do, whereupon the defendant, as secretary to the Council and at their direction, wrote a letter to the General, vindicating him against the charge made by the plaintiff and containing defamatory statements about the plaintiff, and sent it to the Press for publication. The letter was widely published in the British and Colonial Press. The House of Lords held that the letter was published on a privileged occasion because it was the duty of the Army Council "to inquire into the truth of this charge and to make the result of that inquiry known as widely as possible", [69] to vindicate the General's conduct. [70]
Another illustration is Bowen-Rowlands v Argus Press Ltd, [71] in which a relative successfully relied on a reply to attack defence when sued for defamation in respect of defamatory statements she made about the plaintiff in the course of vindicating her father's reputation.
Thirdly, it seems that the reply to attack defence may succeed even if the reply does not defame the attacker, but, as ostensibly in this case (subject to the complicity issue), a third party. Coward v Wellington illustrates that proposition. In that case, a customer accused a tradesman of charging for goods which were never delivered. The tradesman responded in writing suggesting that an employee of the customer was guilty of fraud. The employee was dismissed. The employee's husband brought proceedings for special damage he sustained by reason of his wife's dismissal. [72] The defence was that the letter was a privileged communication, written by the defendant "in his own defence". His letter was found to be protected by qualified privilege. Littledale J held that "[i]f a man bonâ fide writes a letter in his own defence, and for the defence and protection of his interests and rights, and is not actuated by any malice, that letter is privileged, although it may impute dishonesty to another; but in such cases, malice may either be proved by the letter itself, or by other evidence." [73]
Coward v Wellington has been referred to in the High Court and elsewhere with apparent approval. Barton ACJ referred to it in Norton, [74] to illustrate, it would appear, the ambit of a defence of reply to attack.
In Mowlds, [75] Williams J referred to Coward v Wellington as illustrating the proposition that "[i]f the reputation of a person holding a public position is publicly attacked he has an interest to reply to such attack and publish it to the members of the public who are likely to have become aware of it, and such members of the public would have an interest to receive it". His Honour also referred with approval to Dixon J's reasons in Loveday. [76]
The defendant in Mowlds was a senior police officer, who was severely criticised by a Royal Commissioner in respect of a report he had written in 1934 in a matter involving the conduct of the plaintiff. In 1937, as a result of a request originating from the Premier, the defendant wrote a further report on the same matter in which, in the course of seeking to justify his 1934 report, he defamed the plaintiff. The defendant showed his 1937 report to C, who had been the Commissioner of Police from whom he had obtained advice about his 1934 report, but who had since resigned. The High Court unanimously held that the publication to C was on an occasion of qualified privilege. Mowlds demonstrates how the notions of corresponding duty or interest must be "very widely interpreted" when defamatory matter is published in self-defence, in defence or protection of an interest, or by way of vindication of reputation following an attack. [77]
As Mr Dawson submitted, Mowlds is an example of a publisher being able to rely upon defence to attack qualified privilege in resisting defamation proceedings by a person who was not that attacker, but was defamed in the course of the reply.
In Loveday, the defendant newspaper published an article containing extracts from a letter written to the newspaper by the secretary of a District Unemployed Relief Council (DURC) attacking Canterbury Municipal Council (Council) with respect to its refusal of relief work to the plaintiff. The same article contained a statement in reply, prepared by the Town Clerk of the Council, saying the plaintiff had been refused relief work and giving reasons which were defamatory of him. The plaintiff brought defamation proceedings against the newspaper and the Town Clerk, but was nonsuited on the basis that the publication was made on an occasion of qualified privilege which protected both the newspaper and the Town Clerk and there was no evidence of malice fit to be left to the jury.
The plaintiff's application to set aside the nonsuit failed before the Full Court and unanimously in the High Court. The plaintiff's contention in the High Court was that before considering the nonsuit application, the trial judge should have asked the jury to determine whether he authorised the sending of the letter to the newspaper, [78] a point which had not been raised at trial. [79]
The Court (Latham CJ, Starke and Dixon JJ) held that if the plaintiff had authorised the DURC to send the letter to the newspaper, both defendants were entitled to rely upon a reply to attack qualified privilege. [80] Latham CJ and Starke J were both of the view that there was evidence at trial to support a finding that the plaintiff had authorised the DURC to send the letter to the newspaper and, accordingly, that the nonsuit was right. [81]
Dixon J disagreed on this point. His Honour cited Coward v Wellington in support of the proposition that " ... if A attacks B and in order to defend himself B reasonably publishes defamatory matter of C, who has been no party to the attack, B's privilege will protect him as against C". [82] His Honour did so apparently to demonstrate that the qualified privilege defence would run even if the plaintiff (C) had not authorised the DURC (A) to send the letter to the newspaper attacking the municipal council (B) as long as the DURC letter had been published prior to the defamatory publication. [83] However, in his Honour's view, if it could not be established that the plaintiff consented, invited or incited the newspaper to publish the DURC letter and the Town Clerk's response, the newspaper could not claim the benefit of a qualified privilege defence where it published the Town Clerk's response "not in answer, but as a fresh item on which a general interest, as distinguished from a particular interest already aroused". [84] In his Honour's view, "upon the evidence as it stood the jury were not bound to find that the plaintiff did authorize the letter to the newspaper" and, accordingly, the newspaper was not entitled to a nonsuit. [85] His Honour was of a different view in relation to the Town Clerk who had "procured the publication of the defamatory matter for the purpose of meeting an attack to be published at the same time." [86]
In Palmer v Belan, [87] a defamatory leaflet written by the defendant, Mr Belan, in response to an "attack" by the plaintiff, Mr Palmer, "repeatedly named" a Mr Boner. Kirby J referred with approval to Dixon J's reasons in Loveday, [88] in support of the proposition that publication of the leaflet was protected by reply to attack qualified privilege. In his Honour's view, "[a]lthough Mr Boner had nothing to do with the attack, the victim may, in his response, deal with the complicity of third parties, provided the allegations against them are not wholly unconnected with the defence". [89]
In McNicol, in the passage upon which Mr Dibb relied, after setting out the facts of Coward v Wellington and Littledale J's statement to which I have referred, Kelly J said: "[92] I take that case as authority for the proposition that a person attacked may defend himself by seeking to show that blame attributed to him is really properly attributable to a third person and that such a communication from the person attacked is afforded the protection of qualified privilege unless malice can be shown by the person onto whose shoulders the blame is sought to be thrown. See also Mowlds v Fergusson [1940] HCA 38; (1946) 64 CLR 206 at p 219 per Williams J."
In my view neither Coward v Wellington nor the passage in Williams J's reasons in Mowlds to which I have referred above is authority for the limited proposition Kelly J enunciated. The question is whether the statements the defendant makes to vindicate his or her reputation in response to an attack are "commensurate with the occasion" or, as Kiefel J emphasised in Trad, [90] are relevant to the matter which gives rise to the occasion. [91] No narrow limit should be placed upon those propositions.
Dixon J's reasons in Loveday are those of one of the most eminent judges in the Australian judiciary. Speaking in 1987, Sir Anthony Mason said: "Primacy of place among Australian judges has always been accorded to the views of Sir Owen Dixon. Indeed, his views have been cited with universal respect in the courts of common law countries. His discussion of any legal topic invariably contained nuances of thought not previously revealed to those who had studied the topic closely. No other Australian judge has established a comparable reputation." [92]
I accept that it would not be proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment. [93] However, the fact that a judgment of the High Court is a dissenting one does not necessarily diminish its persuasive power. It is, of course, not unknown for a dissenting judgment to become the orthodox wisdom. One well-known example is Lord Atkin's dissent in Liversidge v Anderson. [94] As Gummow and Hayne JJ accepted in Jones v Bartlett, [95] "perhaps we should not make a shibboleth of any requirement that there may be in this context that dissenting judgments should be disregarded; they may at least contain weighty dicta" or "deserve respectful consideration". [96]
In any event, Dixon J's statement is supported by other authority. Indeed, as Mr Dawson submitted, understood as an example rather than a statement of principle, Kelly J's statement in McNicol describes the reply to attack defence the respondents seek to advance. Ms Issa was arguably defending herself against Mr Issa's attack by showing that Mr Abou-Lokmeh was really the person to whom the finger of blame should be pointed.
In my view the explanation for Coward v Wellington lies in the rationale of the defence to attack qualified privilege which permits "the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public" [97] and the recognition that in vindicating his or her reputation, the respondent may impugn the reputation of even third parties, as long as the response is commensurate with, or relevant to, the occasion. [98]
That is not to say that Coward v Wellington is without critics. Spencer Bower said it "seems difficult to explain or support". [99] However, in my view, Dixon J's uncritical recitation of Coward v Wellington and the application of that case in other authorities are weighty considerations in finding that the respondent's defence to attack qualified privilege is not so unarguable in the General Steel sense as to be struck out prior to trial. It is for the Court on that occasion to undertake the careful scrutiny of all the circumstances of the publication to determine whether the defence is made good.
The primary judge did not err in refusing to strike out the reply to attack defence.

Proportionality

Finally, Mr Abou-Lokmeh complained that the primary judge erred in declining to take account of the proportionality principle in considering the impugned portions of the proposed amended defence and in failing to exercise her discretion to strike them out as a preliminary matter.
It was unclear whether Mr Dibb finally pressed this argument. Without considering how any principle of proportionality might apply in other circumstances, there is no room for its application in my view in this case.

Orders

I propose the following orders: 1. Grant leave to appeal in relation to grounds 1, 4 (insofar as it refers to contextual imputation (i)) and 5. 2. Direct the appellant to file a notice of appeal in the form of the draft notice in the White Book limiting the grounds to those in respect of which leave has been granted, within seven days. 3. Dismiss the appeal. 4. Appellant to pay the respondent's costs of the application for leave to appeal and the appeal, including the costs of the hearing on 23 March 2016.
GLEESON JA: I have had the advantage of reading in draft the reasons of McColl JA and Payne JA.
I agree with McColl JA for the reasons her Honour gives that leave to appeal should be refused in relation to the challenge to the primary judge's refusal to strike out contextual imputations (ii), (iii) and (iv).
I agree with Payne JA for the reasons that his Honour gives that leave to appeal should be refused in relation to the primary judge's refusal to strike out contextual imputation (i) and the common law defence of qualified privilege on the basis of reply to an attack.
In relation to contextual imputation (i) I would add that the reasons of McColl JA demonstrate that the applicant has not shown an injustice which in the circumstances should be addressed, there being no suggestion that the proposed appeal on this ground raised any issue of principle or question of general importance.
As to the "reply to an attack" defence, since the first ground given by McColl JA is a sufficient basis to refuse leave to appeal, the question of principle sought to be raised by the applicant does not require determination at this stage and, depending upon what occurs at the trial, it may never arise. In those circumstances, and without intending to detract in any way from what her Honour has written on that topic, I would prefer to leave the issue of principle for another day when the facts are either fully found or otherwise agreed for the purposes of determination of a separate question.
PAYNE JA: I have had the advantage of reading in draft the reasons of McColl JA. I agree with her Honour in relation to contextual imputations (ii), (iii) and (iv) that leave to appeal should be refused for the reasons her Honour gives.
While I agree generally with her Honour's reasons in addressing contextual imputation (i) and the defence of common law qualified privilege based on a reply to attack, I would refuse leave to appeal on those grounds.

The issue in this case

Generally speaking, leave will only be granted concerning matters involving issues of principle, questions of general public importance or involving an injustice which is reasonably clear, in the sense of being more than merely arguable: Carolan v AMF Bowling Pty Ltd (Court of Appeal (NSW), 16 November 1995, unrep) per Kirby P; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38].
The only issue in the present case is whether leave should be granted to determine whether the primary judge was correct to decline to strike out parts of a defence. That is not a promising basis as an initial consideration for the grant of leave.
The test to be applied in applications to strike out pleadings was succinctly stated in State of New South Wales v Williams [2014] NSWCA 177 at [71] by Emmett JA (Macfarlan and Simpson JJA agreeing): The requirement for establishing that there is no triable issue is a demanding one and the power to strike out a pleading on the basis that it discloses no reasonable defence, or is an abuse of process, should be exercised only in plain and obvious cases. The power should not be exercised in cases of doubt or difficulty or where the pleading raises a debatable question of law. Once it appears that there is a real issue, whether of fact or law, and that the rights of the parties depend upon it, a court should not dismiss a defence raising such an issue, either on the basis that no reasonable defence is disclosed or as an abuse of process (see Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 129-130; Commonwealth v Griffiths [2007] NSWCA 370; 70 NSWLR 268 at [11]-[12] and Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at 139-140).
There is no rule in defamation proceedings that makes these general principles inapplicable.

Contextual imputation (i)

The applicant contends that contextual imputation (i) does not fall within the statutory defence of contextual truth contained in s 26 of the 2005 Act. That section provides: 26 Defence of contextual truth It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ("contextual imputations") that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations [italics added].
The sole issue is whether contextual imputation (i) is carried "in addition to" the plaintiff's imputation (a) within the meaning of s 26 of the Act. There is no issue raised by the applicant about the correct test to be applied in determining this question.
As McColl JA demonstrates, for a contextual imputation to be carried "in addition to" another imputation it must differ in substance from that other imputation (Fairfax Media Publications v Zeccola [2015] NSWCA 329 at [42]-[46] and [48] per McColl JA, Macfarlan JA agreeing; [114] per Sackville AJA).
I agree with McColl JA that the primary judge was correct to conclude that contextual imputation (i) is carried in addition to the plaintiff's imputation (a). The particulars for contextual imputation (i) raise different matters to the defamatory publication and the incident it describes.
The respondent has particularised as part of contextual imputation (i) and will seek to prove at the trial that: 1. the applicant told her that he would kill her and that she would die; and 2. the applicant placed sugar in the fuel tank of her car.
Those matters tend strongly to suggest that contextual imputation (i) is carried in addition to plaintiff's imputation (a).
Further, imputation (a) pleads a specific act (making a payment to have the respondent murdered) whereas the contextual imputation (i) pleads a general state of mind or condition (the plaintiff wanted the third defendant to be killed). In my view, the two imputations differ in substance.
There is no issue of principle or question of general public importance raised by this ground. It is common ground that the test to be applied in determining this question is found the judgment of McColl JA in Zeccola. It is only the application of that test to particular facts which is in issue.
The question is not one involving an injustice which is reasonably clear. To the contrary, the primary judge did not err in refusing to strike out contextual imputation (i).
I would refuse leave to appeal in relation to contextual imputation (i).

Defence of common law qualified privilege based on a reply to attack

I agree with McColl JA that the respondents' "reply to attack" defence is not so clearly untenable that it cannot succeed.
In particular, I agree with her Honour that at this stage of the proceedings the respondents may establish at trial that Mr Abou-Lokmeh was complicit in the attack upon Ms Issa. If that is so, the question of whether the defence is maintainable in circumstances where the reply defames a third party will not arise.
That is a sufficient basis to dispose of this matter. The primary judge was correct not to strike out the defence on that basis.
The alternative basis upon which McColl JA considers the matter, involving a close consideration of Coward v Wellington (1836) 7 Car & P 531; 173 ER 234 and the authorities in the High Court and this Court which have discussed that case, is thus unnecessary to determine the present case.
As McColl JA demonstrates, any complete consideration of the question of the defence of common law qualified privilege based on a reply to attack would involve an analysis of Dixon J's statement in Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503. Whist cognizant that his Honour's remarks were contained in a dissenting judgement, those remarks were plainly closely considered dicta and should not be departed from by this Court without a powerful reason. I agree with McColl JA that the only reason to do so suggested by the applicant - a first instance decision of the ACT Supreme Court in McNicol v ACT Health Authority [1988] ACTSC 55 - does not provide any basis to depart from Dixon J's judgement.
A complete consideration of the question would also involve an analysis of the decision of the High Court in Harbour Radio Pty Ltd v Trad [2012] HCA 44; (2012) 247 CLR 31. In that case the plurality referred with approval (at [25]) to the following statement of Dixon J in Mowlds v Fergusson [1940] HCA 38; (1940) 64 CLR 206 at 214-215: Where the defamatory matter is published in self-defence or in defence or protection of an interest or by way of vindication against an imputation or attack, the conception of a corresponding duty or interest in the recipient must be very widely interpreted. [emphasis added]
The plurality continued at [35]: That the matter complained of is sufficiently connected to the privileged occasion to attract the defence may appear upon any one of several considerations. The matter may be sufficiently connected with the content of the attack, or it may go to the credibility of the attack, or to the credibility of the person making that attack. Questions of degree inevitably will be presented.
In my view it would be open to a jury to conclude that the matter complained of was sufficiently connected with the content of the attack.
In light of the above I am of the view that the primary judge did not err in refusing to strike out the respondents' defence of common law qualified privilege based on a "reply to attack".
The issue raised is not one of principle or a question of general public importance. The questions sought to be agitated by the applicant about the defence of common law qualified privilege based on a reply to attack do not yet arise and may never arise in this case. The only question is whether the primary judge was correct not to strike out an arguable defence. It is inappropriate for this Court to embark upon a summary determination of a legally arguable defence on the contingent basis advanced by the applicant.
The issue does not involve an injustice which is reasonably clear. In my view the primary judge was clearly correct not to strike out the defence of common law qualified privilege based on a reply to attack. I would refuse leave to appeal.

Orders

Accordingly I propose the following orders: 1. Refuse leave to appeal; 2. The applicant to pay the respondents' costs, including the costs of the hearing on 23 March 2016.

SCHEDULE

RAY HADLEY: Mahassen G'day.
MAHASSEN ISSA: Hello Ray, good morning.
RAY HADLEY: Good morning Mahassen
MAHASSEN ISSA: How are you?
RAY HADLEY: I'm well thank you, Mahassen.
MAHASSEN ISSA: It's good to be home.
RAY HADLEY: Now I'm told you're the young lady that we had spoken about previously, when I received a phone call from your brother.
MAHASSEN ISSA: Yes.
RAY HADLEY: You're the young lady who was, I believe, detained in Lebanon. Is that correct?
MAHASSEN ISSA: Yes
RAY HADLEY: Ok
MAHASSEN ISSA: By a stop order placed by my ex-husband.
RAY HADLEY: Ok. Ok now look, I have no interest in your private life. That's a matter for you and your former husband and your new partner. I have no interest in that. But the story back here, and you may not be aware of all the details, because you were over there. Umm, portrayed by your brother that you parted company with your former husband
MAHASSEN ISSA: Hmm-mm.
RAY HADLEY: You travelled to Lebanon,
MAHASSEN ISSA: Yep
RAY HADLEY: And got married to your new partner.
MAHASSEN ISSA: Yep.
RAY HADLEY: While still married to your former husband.
MAHASSEN ISSA: Hmm-mm. But that's not true.
RAY HADLEY: Ok, well you tell me
MAHASSEN ISSA: We were separated and I had filed for divorce.
RAY HADLEY: Right.
MAHASSEN ISSA: Yep, and um that's when I had left.
RAY HADLEY: Ok, so you're separated and filed for divorce. But did you get married to your new partner in Lebanon in some circumstance?
MAHASSEN ISSA: No, we had a commitment ceremony.
RAY HADLEY: A commitment ceremony, ok.
MAHASSEN ISSA: Yep.
RAY HADLEY: Who officiated at that? I'm not being… I'm just trying to get to the truth. I'm not being a sticky beak. But who officiated the commitment ceremony?
MAHASSEN ISSA: There was no officiation with the commitment ceremony, it was just done me and him.
RAY HADLEY: Ok, you committed to each other.
MAHASSEN ISSA: Yes.
RAY HADLEY: Ok, your former husband then reported to authorities in Lebanon that you had done something wrong. Is that what happened?
MAHASSEN ISSA: No, a Sydney Sheikh wrote a false statement to help my ex-husband.
RAY HADLEY: Ok.
MAHASSEN ISSA: To place a stop order on my Australian passport.
RAY HADLEY: And what did the Sheikh write to the authorities in Lebanon?
MAHASSEN ISSA: The Sheikh wrote that, um, we weren't separated and I had not filed for divorce, we were just in reconciliation.
RAY HADLEY: Ok, and you maintain that was not true?
MAHASSEN ISSA: No, definitely not because he was well aware of my situation and um, between, he was like a mediator between the two. He was asking me before I had left, you know, is there any chance of reconciliation. I said no, I filed for divorce and he was given the appropriate documentation and he still went ahead and wrote this false statement. Um, 30th of June.
RAY HADLEY: So the statement was,
MAHASSEN ISSA: 10 days and I was in Lebanon.
RAY HADLEY: So the statement arrives in Lebanon, and so, under what authority do the police or the other authorities detain you in Lebanon? How do they do that?
MAHASSEN ISSA: What had happened was the Sydney Sheikh, um, wrote this statement and gave it to my ex-husband and he registered the marriage through the Lebanese consulate in Sydney.
RAY HADLEY: Hmm-mm.
MAHASSEN ISSA: And that's how the authorities were alerted. And he also hired a Lebanese lawyer,
RAY HADLEY: Right
MAHASSEN ISSA: And allegedly paid him $20,000 American to either put me in jail or have me killed.
RAY HADLEY: Ok, well that's a pretty serious accusation in relation to accusing someone of murder. So we better leave that to the authorities to investigate without making any accusations. Otherwise I'll get myself in strife and probably so will you. So, um, how did you actually get back from Lebanon then? Because I know you've been on Channel 7 on their Sunday program recently, how did you actually come back?
MAHASSEN ISSA: I had to pay Bassem almost $18,000 Australian.
RAY HADLEY: You had to pay whom?
MAHASSEN ISSA: Ex-husband.
RAY HADLEY: You had to give him money?
MAHASSEN ISSA: Yes. To drop the charges.
RAY HADLEY: Oh, I see.
MAHASSEN ISSA: And the police have not even investigated that.
RAY HADLEY: Do you mean the police here or the police there?
MAHASSEN ISSA: No, police here.
RAY HADLEY: Ok, so how did you get the money to him then?
MAHASSEN ISSA: It was from borrowed from my uncle and my mum.
RAY HADLEY: Ok, so one of the really sad things about this, and I got a lot of phone calls after your brother phoned me.
MAHASSEN ISSA: Hmm-mm.
RAY HADLEY: And I have no need to cause you distress, but in every family structure Mahassen…
MAHASSEN ISSA: Yes
RAY HADLEY: We all have blues and fights and stinks. I mean it's part of being part of a family.
MAHASSEN ISSA: Yes
RAY HADLEY: And when things break down, and I said to your brother surely there's, you know, no matter what the circumstances, this is your sister you're talking about.
MAHASSEN ISSA: That's right.
RAY HADLEY: You mentioned your mum then. Have you been reconciled with your family since arriving back in Australia?
MAHASSEN ISSA: I have reconciled with my mother, however I have chosen not to reconcile with the rest of the family.
RAY HADLEY: Do they wish to reconcile with you?
MAHASSEN ISSA: Um, I don't know. I honestly don't know.
RAY HADLEY: How old are you love?
MAHASSEN ISSA: Sorry?
RAY HADLEY: How old are you?
MAHASSEN ISSA: I'm 30.
RAY HADLEY: Ok, you got a long way to go.
MAHASSEN ISSA: Yes.
RAY HADLEY: It's a long time not to talk to your siblings.
MAHASSEN ISSA: Yes, and um, just as long as my children are home with me, that was my main concern.
RAY HADLEY: Do you have the children with you?
MAHASSEN ISSA: Yes.
RAY HADLEY: That was the other thing people didn't understand, so I'll give you a chance to explain yourself, um. That you had, and this is not my allegation, their allegation, that you deserted your children and travelled with your boyfriend to Lebanon.
MAHASSEN ISSA: That is completely not true.
RAY HADLEY: Ok, so tell me what happened?
MAHASSEN ISSA: I would never have abandoned my children. I'm a primary school teacher of 10 years so I would never abandon my children. It was an actual initial agreement between me and the ex-husband, and he wanted me to go, believe it or not, I'm thinking why was he being so, you know…
RAY HADLEY: So it was a holiday, was it?
MAHASSEN ISSA: Yeah, and cause I said I was going to go for two weeks, I didn't tell him where…
RAY HADLEY: Hmmmm
MAHASSEN ISSA: And he was fine, it was very lucky that I did not take my children because the father maintains custody of the children and then my children would have been, uh, banned from leaving Lebanon and they would have to stay there.
RAY HADLEY: So, as in the case with many of these unfortunate scenarios, you'd said I'm going to have a holiday for a couple of weeks…
MAHASSEN ISSA: Yeah
RAY HADLEY: And uh, I guess he has some custody of the children so he said I'll take the children while you're away. Is that what…
MAHASSEN ISSA: Yes
RAY HADLEY: Transpired?
MAHASSEN ISSA: Yes, that's exactly what transpired.
RAY HADLEY: Do you have a shared parenting arrangement with him now, do the kids see both of you?
MAHASSEN ISSA: The children do see both of us, but I have retained full custody of the children because I was the primary caregiver since the day they were born.
RAY HADLEY: Sure, I understand that.
MAHASSEN ISSA: As their mother, and um, and the father just decided to remain, uh, that he, that I abandoned them, he just kept saying that I abandoned them and I didn't. There was an agreement I was only coming for two weeks, it's not as thought I was leaving for a year or two, it was like two weeks and I'll be back.
RAY HADLEY: Hmmm.
MAHASSEN ISSA: And then when I tried to leave, um, that's when the travel ban was raised on my Australian passport and which, um, the authorities found very, very strange.
RAY HADLEY: Hmmm.
MAHASSEN ISSA: Because they said, you're an Australian, you've come here on an Australian passport. How could that happen?
RAY HADLEY: Hmmm.
MAHASSEN ISSA: And I said, I know, I go well what's happening. I was just totally lost for words, thinking what is going on and then that's when, you know, the trouble all started.
RAY HADLEY: I guess, the warning here from the Lebanese Muslim Association is that women like you need to ensure they have an Islamic divorce before they travel to Lebanon.
MAHASSEN ISSA: The Islamic divorce, um, the Islamic divorce was handed down…
RAY HADLEY: Right.
MAHASSEN ISSA: However, it's the matter of denial in regards to them cause they don't give you the appropriate paperwork. The sheikhs, it's up to them at the end of the day…
RAY HADLEY: To give you the paperwork that says you are divorced under Islamic law?
MAHASSEN ISSA: Yeah, but they can chop and change whatever they want as they please. Because I'm not the first one, Ray, and I'm not the last one.
RAY HADLEY: Hmmm.
MAHASSEN ISSA: It turns out this is rampant in our community at the moment, where the ex-husbands are forcing their women to stay, Australian women, by the way, Australians and their children, and keeping them entrapped in Lebanon for blackmail. And sheikhs know about it and they've kept a lid on it for this long.
RAY HADLEY: Well what they've said here, and this is obviously what you're saying. The Department of Foreign Affairs and Trade confirmed that other Australians, including mothers and children, are stopped from leaving Lebanon by Stop-Orders. Under Lebanese law, Lebanese nationals and non-nationals, may prevent family members from leaving Lebanon even if they are Australian citizens.
MAHASSEN ISSA: That's right. That's right.
RAY HADLEY: And the Australian government can't prevent or overturn these stop orders.
MAHASSEN ISSA: No.
RAY HADLEY: Or issues on Australian citizens. So, as you say, you're very lucky you didn't have your children there.
MAHASSEN ISSA: That's right. If I had my children there, he would have retained, the children would have had to stay over there.
RAY HADLEY: Hmmm.
MAHASSEN ISSA: And I could have, I never would have returned because I would not leave without my children.
RAY HADLEY: Sure.
MAHASSEN ISSA: And um,
RAY HADLEY: Anyway, let's try and be positive about it. You have your children with you now, um…
MAHASSEN ISSA: Yes
RAY HADLEY: You're talking to your mum, which is good.
MAHASSEN ISSA: Yep
RAY HADLEY: It's a decision for you whether you talk to your siblings and other members of your family, but you're only a young woman and obviously there's a lot of things to go and it's important for the children to have contact with…
MAHASSEN ISSA: Of course
RAY HADLEY: All those members of your family because they're positive influences even if they've had a disagreement with you.
MAHASSEN ISSA: Yes, that's right.
RAY HADLEY: Ok.
MAHASSEN ISSA: Now the children do see their aunties and uncles…
RAY HADLEY: Oh, that's good.
MAHASSEN ISSA: But I'm not involved or affiliated with them at this present time.
RAY HADLEY: Ok, you're still a bit angry obviously?
MAHASSEN ISSA: It's not anger, it's just I think the trauma from it all. And I think, Ray, um, if you, you'd probably understand and you know if anyone was down, you don't kick a person when their down. Especially when they're your flesh and blood.
RAY HADLEY: No, I understand that. Look, as I said I have no great understanding of the matters until I spoke to your brother, I have a greater understanding having spoken to you. But I did say to your brother, who seemed like a reasonable person and very respectful to me, I said this is your sister you're talking about. You know, and uh, and I've had plenty of blues with members of my family and I'll probably be the last one to lecture.
MAHASSEN ISSA: Well, we all have. We're all families and everyone's going to have a good [indistinct]. That's understandable, they're family constructs and that's what happens. There's breakdowns, there's happy times, it just happens. But the thing is, you know, you're talking to national as to, you know, putting such a violent, you know, slur on me and on your own sister. That was very traumatising.
RAY HADLEY: Well I must admit, I was a bit taken aback by his fervour. But in the end I asked him to resile from that and he did concede some points.
MAHASSEN ISSA: Yep.
RAY HADLEY: And I'm sure that he was quite emotional and disturbed by what he thought was happening.
MAHASSEN ISSA: He, the thing is they didn't, there's, look Ray all I just want to say is that nobody knows what happens in your home.
RAY HADLEY: No, I understand.
MAHASSEN ISSA: Between your wife, your partner, whoever.
RAY HADLEY: No, I understand that.
MAHASSEN ISSA: No-one knows what happens and I did not want, um, my family did not want the divorce to begin with.
RAY HADLEY: No, that's what he said to me. He didn't want it, but at the end of the day…
MAHASSEN ISSA: But it's not up to them.
RAY HADLEY: No, and thank you for making that point. You're a 30 year old woman who's quite capable of making her own decisions and I respect that as well. And I really appreciate the fact that you've jumped on the phone to talk to us today, to give us the other side of the story and I wish you the best in the future. Ok?
MAHASSEN ISSA: Thank you very much Ray. And I just want to make sure that also there was one more thing in regards to the extortion that was done by my ex-husband.
RAY HADLEY: Well, do me a favour will you, just drop off the extortion. Cause if you're gonna sue someone he'll sue me, not you. So…
MAHASSEN ISSA: Nah, I'm…
RAY HADLEY: Or call it alleged extortion.
MAHASSEN ISSA: Yeah, the alleged extortion.
RAY HADLEY: Yeah, go on.
MAHASSEN ISSA: Where I had to pay my ex-husband $15,000 in order for him to drop the charges. Now, um, all I'm just trying to say is that the ex-husbands are getting help from these Muslim clerics and these Sheikhs where they're in a position of power. You know, under the Australian law. Where he dismissed and disregarded my application for divorce, which meant nothing…
RAY HADLEY: Yeah
MAHASSEN ISSA: Absolutely nothing. And by him writing a statement on his own accord and sending that off to the authorities, and also when Zali Burrows, my lawyer, she came and helped me and she was trying to get me through the legal system. This Sheikh as well, [indistinct] from the mosque in Lakemba, he even went out of his way and called the head Sharia judge that was taking my trial. And reconfirmed, and he even knew how volatile my situation was.
RAY HADLEY: Sure. Well let me say this in relation to the treatment of some women, not all women, in the Muslim faith. There's a lot to be learned about the way women are…
MAHASSEN ISSA: It's a man's world. That's all it is.
RAY HADLEY: Well unfortunately, I think it may well be in that particular…
MAHASSEN ISSA: Even so, we have our rights. We have our rights, and it doesn't just stop in religion, as women we have our rights. Ok, um, but for them, they twist, turn the law as to they see fit.
RAY HADLEY: Well, you're a strong young woman and obviously you've got the message out there, and I'm sure that there will be other young women who take the lead from you to a certain extent.
MAHASSEN ISSA: I hopefully want to, um, set up a network to help these women that are still trapped overseas. And hopefully I can reach out, because I would have been one of them Ray.
RAY HADLEY: Alright then.
MAHASSEN ISSA: I would have been another number.
RAY HADLEY: Mahassen, if we can help in any way, we don't want women getting treated in the manner in which you described and if we can help we will, ok?
MAHASSEN ISSA: Thank you so much Ray.
RAY HADLEY: Thank you for your time.
MAHASSEN ISSA: Thank you, you take care.
RAY HADLEY: Mahassen Issa, the young lady we spoke about and not to, we spoke to her brother when she was trapped in Lebanon. She's now back in Australia thankfully.

Endnotes

Lokmeh v Harbour Radio Pty Ltd [2015] NSWDC 172.
See Schedule [13] - [21].
The transcript of the matter complained of to which reference should be made is that appended to the primary judgment. That version was apparently prepared after the parties had listened to a recording of the broadcast during hearing before the primary judge. The new version adopted a different numbering system to that used in the version of the matter complained of which appeared in a Schedule to the Statement of Claim. The new version numbered each participant's statement as a whole, whereas the Statement of Claim version had numbered each line. In the new version, the bracketed references in the imputations were changed as follows: lines 60 - 62 became paragraphs [46] to, and including, the first sentence of [49]; lines 68 - 74 became paragraphs [50] - [60] and lines 220 - 228 became paragraphs [152] - [158] inclusive.
See primary judgment (at [3]).
Primary judgment (at [10]).
(1946) 46 SR(NSW) 318 (at 323).
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 (at 177).
Carolan v AMF Bowling Pty Limited [1995] NSWCA 69 per Sheller JA (Kirby P and Cole JA agreeing); referred to with approval in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56 (at [22]) per Campbell JA (Young JA agreeing); see also Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (at [32] - [33]) per Basten JA (Tobias AJA agreeing).
The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 (at [13]) per Bathurst CJ (Beazley and McColl JJA agreeing).
Primary judgment (at [11]).
Ibid (at [12]).
Maisel v Financial Times Ltd (1915) 112 LT 953 (Maisel).
Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 (at 122) per Hunt J (as his Honour then was).
Younan v Nationwide News Pty Ltd [2013] NSWCA 335 (at [20]) per Macfarlan JA (Bathurst CJ and Beazley P agreeing); see also General Steel Industries Inc v the Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 (General Steel) (at 129); Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 (at [57]) per Gaudron, McHugh, Gummow and Hayne JJ.
McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196 (McMahon) (at [22]) per McCallum J.
Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 (Kermode) (at [78]) per McColl JA (Beazley and Giles JJA agreeing); see also Mizikovsky v Queensland Television Ltd [2013] QCA 68; [2014] 1 Qd R 197 (at [14]) per Fraser JA (Holmes JA and Fryberg J agreeing).
Kermode (at [79]).
(at [19]).
Fairfax Media Publications v Zeccola [2015] NSWCA 329 (Zeccola) (at [42] - [48]) per McColl JA (Macfarlan JA and Sackville AJA agreeing).
[2011] NSWSC 204 (Ange).
John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 (at [188]) per McColl JA; see also Toben v Milne [2014] NSWCA 200 (at [12]) per Beazley P and Ward JA.
Singleton v John Fairfax & Sons Ltd (Supreme Court (NSW), Hunt J, 20 February 1980, unrep) (Singleton - BC8000039) (at 7).
Zeccola (at [49]), referring to Allen v John Fairfax & Sons Ltd (Supreme Court (NSW), Hunt J, 2 December 1988, unrep) (Allen - BC8801264).
Allen (BC8801264 at 10). His Honour was writing about the contextual truth defence afforded by s 16 of the 1974 Act. Although s 26 uses different language from s 16 of the 1974 Act, the differ in substance requirement is common to both: Zeccola (at [42] - [43]).
See the discussion in Kermode (at [51], [65] - [66]).
Allen (BC8801264 at 7).
[2011] NSWSC 633 (Hyndes) (at [34] - [35]).
[1999] NSWCA 22; (1999) Aust Torts Reports ¶81-502 (Deren).
Deren (at [78] - [79]; [84] - [85]); see also John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 (Jones) (at [62]) per Hodgson JA.
See [33] above.
Deren (at [91]) per Priestley JA; Nationwide News Pty Ltd v Warton [2002] NSWCA 377 (at [61]) per Heydon JA (Handley and Hodgson JJA agreeing); see also the discussion in Habib v Nationwide News Pty Ltd [2010] NSWCA 34; (2010) 76 NSWLR 299 (Habib) (at [322] - [332]) per curiam.
See Singleton (BC8000039 at 7); Toben (at [12]).
Singleton (BC8000039 at 7).
Cf Crosby v Kelly [2013] FCA 1343 (at [28]) per Rares J.
Singleton (BC8000039 at 7).
See Jones (at [99]) per Hodgson JA; (at [107], [110]) per Ipp JA; Ange (at [28]).
(at [14]).
Habib (at [322]).
See Setka v Abbott [2014] VSCA 287; (2014) 44 VR 352 (at [298] - [299]) per Warren CJ and Ashley JA.
Primary judgment (at [19]).
Ibid (at [20]).
[1936] HCA 40; (1936) 55 CLR 499 (at 505).
Cf 2005 Act, s 26(b).
Primary judgment (at [24]).
Ibid (at [25]).
2005 Act, s 26(b).
[1938] HCA 28; (1938) 59 CLR 503 (Loveday) (at 520).
[1988] ACTSC 55 (McNicol) (at [91] - [92]).
(1836) 7 Car & P 531; 173 ER 234.
[2012] HCA 44; (2012) 247 CLR 31 (Trad) (at [130] - [140]).
2005 Act, s 22(5)(b).
Although it was for the jury previously to decide any disputed issues of fact upon which that determination might depend: Hanrahan v Ainsworth (1990) 22 NSWLR 73 (at 87 - 89) per Kirby P (Mahoney JA agreeing); (at 102) per Clarke JA.
Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102 (Guise) (at 116 - 117) per Dixon J.
Michael Gillooly, The Law of Defamation in Australia and New Zealand, (1998, The Federation Press) (Gillooly) (at 218); see also Adam v Ward [1917] AC 309 (at 318); Norton v Hoare (No 1) [1913] HCA 51; (1913) 17 CLR 310 (Norton) (at 316, 319) per Barton ACJ; Loveday (at 509) and other cases referred to in footnote 353 in Gillooly.
Guise (at 116 - 117) per Dixon J, cited in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 (at [10]) per Gleeson CJ, Hayne and Heydon JJ; (at [139]) per Gummow J; see also Marshall v Megna [2013] NSWCA 30 (at [5]) per Allsop P (Hoeben JA agreeing); Watts v Times Newspapers Ltd [1997] QB 650 (at 660) per Hirst LJ (Henry LJ and Sir Ralph Gibson agreeing), quoting London Association for Protection of Trade v Greenlands Limited [1916] 2 AC 15 (at 23) per Lord Buckmaster LC.
Penton v Calwell [1945] HCA 51; (1945) 70 CLR 219 (Penton) (at 243).
Adam v Ward (at 330) per Lord Dunedin. The "victim" may defame third parties provided the allegations against them are not wholly extraneous to or unconnected with the defence: Gillooly (at 178); Watts v Times Newspapers (at 670 - 671) per Hirst LJ (Henry LJ and Sir Ralph Gibson agreeing).
[1950] 1 All ER 449 (at 470).
Adam v Ward (at 326, 327) per Lord Dunedin.
(at [33]).
(at 233 - 234).
Trad (at [25]) per Gummow, Hayne and Bell JJ.
[1940] HCA 38; (1940) 64 CLR 206 (Mowlds) (at 214 - 215). When referring to this passage in oral argument, Mr Dawson, who appeared for the respondent, pointed out that it appears in that part of the plurality's reasons dealing with Mr Trad's submission. However, it is apparent that this section of the plurality's reasons was part of their Honours' reasoning to their conclusion.
Adam v Ward; Loveday (at 512) per Latham CJ; (at 519) per Dixon J.
Trad (at [27]) per Gummow, Hayne and Bell JJ.
Cf Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 (at 347) per Knox CJ; (at 364) per Isaacs J.
Bayne v Bailleu [1908] HCA 39; (1908) 6 CLR 382 (at 397) per Griffiths CJ; (at 399) per O'Connor J.
See also Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (at 779) per curiam.
(at 319) per Lord Finlay LC (Lord Atkinson agreeing); (at 323) per Lord Dunedin; (at 347 - 348) per Lord Shaw of Dunfermline.
(at 322) per Earl Loreburn.
The Times, 10 February and 26 March 1926 (Bowen-Rowlands), to which Dixon J referred with apparent approval in Loveday (at 519 - 520). His Honour also referred to the fact Bowen-Rowlands was discussed in Standen v South Essex Recorders Ltd (1934) 50 TLR 365. In that case (at 366), dealing with the question whether a publication in a newspaper was protected by qualified privilege, Swift J distinguished Bowen-Rowlands (and Adam v Ward) as cases in which "the publication in the Press had either been invited or incited by the action of the plaintiff who was being replied to for observations which he had made through the same medium."
The husband would have brought the action because, when Coward v Wellington was decided, it was settled that by reason of the laws of coverture, at law a married woman's "separate existence [was] not contemplated; [but was] merged by the coverture in that of her husband"; this was "her position of disability, or immunity at law": see Murray v Barlee (1834) 3 My & K 209 (at 220); 40 ER 80 (at 84) per Lord Brougham LC. The position did not change until the late nineteenth century when married women's property acts were passed in various common law jurisdictions, the effect of which was that married women (feme covert) were to be capable of suing or being sued as if each was a feme sole.
(at 236 - 237).
(at 317) (Powers J agreeing). In Norton, the Court held the defendant was entitled to plead as a defence that the plaintiff published in another newspaper an article attacking and insulting the defendant and attacking his newspaper, whereby the defendant was defamed.
(at 219).
Ibid; referring to Loveday (at 519, 520). Interestingly, in Mowlds, Dixon J did not refer to his reasons in Loveday. However his Honour's statement of principle concerning reply to attack qualified privilege (Mowlds at 214 - 215), approved as I have said in Trad, sufficiently encompasses, in my view, his Honour's statement in Loveday.
See Trad (at [119]) per Kiefel J, referring to Mowlds (at 214 - 215) per Dixon J.
Loveday (at 509).
Ibid (at 510).
Latham CJ (at 514); Starke J (at 516); Dixon J (at (518 - 519).
Latham CJ (at 511); Starke J (at 515 - 516).
(at 520).
Ibid.
Ibid (at 521).
Ibid (at 522).
Ibid (at 522 - 523).
[1999] NSWSC 187 (at [151]).
(at 520).
His Honour also cited Gillooly (at 178) for this proposition.
(at [130] - [140]).
Penton (at 242) per Latham CJ and Williams J; (at 250) per Starke J.
The Hon Sir Anthony Mason, KBE, Chief Justice of the High Court, "The Use and Abuse of Precedent" (1988) 4 Australian Bar Review 93 (at 109); a pertinent illustration of this proposition is the acceptance in Trad (at [33]) by the plurality of Dixon J's first instance statements in Penton.
Federation Insurance Ltd v Wasson [1987] HCA 34; (1987) 163 CLR 303 (at 314) per Mason CJ, Wilson, Dawson and Toohey JJ.
[1942] AC 206; see R v Inland Revenue Commissioners, Ex parte Rossminster Ltd [1980] AC 952 (at 1011, 1025); R v Home Secretary: Ex parte Khawaja [1984] AC 74 (at 110); George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (at 112) per curiam.
[2000] HCA 56; (2000) 205 CLR 166 (at [206]).
See also Federation Insurance Ltd v Wasson (at 314).
Penton at (233) per Dixon J; approved in Trad (at [33]).
Loveday (at 520) per Dixon J, referring to Coward v Wellington.
Spencer Bower, A Code of the Law of Actionable Defamation, (2nd ed 1923, Butterworth & Co) (at 120). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2016

Defamation Act 1974(NSW)

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