HER HONOUR: These are proceedings for defamation commenced by Mr Mohamed El-Mouelhy against QSociety of Australia Inc and four individuals arising out of the publication of two videos posted on Facebook and a live speech.
The proceedings came before the Court for first listing on 27 March 2015. On 2 April 2015 the issues raised at that hearing were determined: see El-Mouelhy v QSociety of Australia [2015] NSWSC 545. A timetable was fixed in order to bring the proceedings back for a second listing in accordance with the Practice Note (SC CL 4). In the meantime, however, different counsel was briefed on behalf of the defendants and further "first listing" issues were raised when the proceedings next came before the Court.
The further issues raised for the Court's determination are whether the plaintiff is obliged to provide particulars of publication "worldwide" of each of the videos and, secondly, whether some of the imputations are bad in form and liable to be struck out. Save as to one of the imputations, which is a new imputation pleaded in response to my judgment following the first listing hearing, the objections to those imputations could have been taken at the time of the first listing hearing. Equally, the point as to publication could have been taken at that hearing, the manner in which publication is pleaded having been on the pleading since the original filing of the statement of claim. In those circumstances, the plaintiff raises a threshold issue as to whether the defendants should have what he described as a "second bite at the cherry."
Ms Chrysanthou, who now appears for the defendants, raised several contentions in response to that issue. First, she noted that it was necessary for the proceedings to be relisted in any event to argue the new imputation. Secondly, she submitted that even if matters were raised which could have been raised at the first listing hearing, a more important consideration is for the imputations to be "got right" so as to comply with the decision of the Court of Appeal in Singleton v Ffrench (1986) 5 NSWLR 425 and, in particular, the obligation of the trial judge stated at 429:
Under the present procedures, it is in my opinion the duty of the trial judge to determine, at the end of the trial, the form in which the issues which have been litigated are to be put to the jury. In pre-judicature style pleadings, issues were determined simply by the state of the pleadings. With judicature pleadings, the position is not so simple. The problems of adapting such pleadings to jury trials and the functions of the judge and counsel in the formulation of issues to be put to the jury have been referred to from time to time: see Burchett v Kane [1980] 2 NSWLR 266 at 278 and the cases there referred to. I do not mean by this that the trial judge may put aside the case which a plaintiff seeks to advance or to have submitted to the jury and to substitute issues which may appear better to serve his interests. The principles on which a judge should act in this regard need not be pursued. But where the parties cannot agree as to the issues which have emerged and which should be put to the jury, it is in the end for the judge, acting on proper principles, to formulate them.
El-Mouelhy v Q-Society of Australia Inc [2015] NSWSC 990 | Case summary | Zoe
Ms Chrysanthou submitted that the determination of those issues (if there are difficulties with the form of an imputation) should not await trial so as to cause cost and inconvenience in the meantime.
To those reasons, I would add a further consideration, which is that the matters complained of in the present case reflect the complexity of public discourse in the field of political values. It is always difficult for a pleader to articulate precisely what is conveyed by a matter of the kind complained of by the plaintiff. Whilst at one level that is a consideration which may warrant indulgence to the plaintiff in amending a pleading, it is also a consideration which, in a proper case, warrants the Court allowing a degree of flexibility in the procedures contemplated in the Practice Note for objecting to a plaintiff's pleading.
Mr Connell, who appears for the plaintiffs, submitted that it renders the Practice Note nugatory to allow a defendant to have a "second bite" in that way. Whilst there is force in that contention (and it is a course which should ordinarily not be allowed), in the circumstances of the present case I was persuaded that it was appropriate to revisit the imputations notwithstanding the fact that the defendants had already been heard as to their form.
The first issue is whether the plaintiff should be obliged to provide particulars of worldwide publication. As already noted, the manner in which publication is pleaded has been on the pleadings since the original filing of the statement of claim. The manner in which it is pleaded is to assert that the plaintiff sues in respect of all publications made worldwide except for publication in the United States of America. That is defined as "the publication area".
The defendants sought particulars of that allegation and, perhaps unsurprisingly, the plaintiff was unable to respond to that request. In those circumstances, the defendants submit that the pleading fails to comply with the rules. In particular, it is contended that r 15.19(1) of the Uniform Civil Procedure Rules 2005 (NSW) requires a plaintiff to provide particulars sufficient to establish a cause of action, to enable the publication to be identified and to enable the distribution to be identified.
It is trite to observe that, in a case alleging publication on the Internet, for publication to be established it must be established that a person has downloaded and viewed the material in question. The effect of the current pleading is to assert that the material sued on has been downloaded in every jurisdiction in the world. That is the only sensible understanding of the term "worldwide".
The plaintiff noted that, as stated in the decision of the High Court in Regie Nationale des Usines Renaut v Zhang [2002] HCA 10; 210 CLR 491 at [70], where a plaintiff seeks to prosecute in New South Wales a cause of action outside of New South Wales, it is for the defendant to plead any defence under the law of the foreign jurisdiction as an exculpatory fact.
Accordingly, the pleading potentially raises the spectre of the defendants having to research and identify whether any defence would be available according to the law of any jurisdiction in the world (assuming that each jurisdiction in the world has a law of defamation).
The plaintiff's response to that complaint was to contend that what was sought by way of particulars was, in effect, "mission impossible". It was submitted that the plaintiff can only do his best and that the obligation rises no higher than to provide the best particulars that he can provide.
Mr Connell relied in that context on the decision of Nicholas J in Leech v Sylvester [2012] NSWSC 1367 and the decision of Beech-Jones J in MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206. Mr Connell also referred me to the decision of Hunt J in Lazarus v Deutsche Lufthansa AG [1985] 1 NSWLR 188 where his Honour ruled that it was not necessary to name every person to whom the publication was published.
None of those decisions raised the issue raised here. Lazarus was a very different case from the present. It was a case in which there was an identifiable occasion of publication but the plaintiff did not know the name of the person to whom the relevant words had been said. The identity of the person to whom the words had been said did not in any way qualify or inform the cause of action and his Honour's ruling, in my view, was quite understandable in that circumstance.
The difficulty in the present case is that the plaintiff in effect seeks a relaxation of the rules for the very reason that he is unable to identify the relevant occasion of publication, except perhaps by broad inference. In my view, the consequence of the inability to identify occasions of publication with any specificity is not that the plaintiff should be relieved of that obligation but that the cause of action is, in accordance with the UCPR, not maintainable unless further particulars are provided.
During the course of submissions, Mr Connell (endeavouring to emphasise the importance to the plaintiff of being allowed to maintain a case for publication worldwide) stated that the plaintiff has offices in Dublin, Mexico and Shanghai, and business connections in Canada, China, the Netherlands, Singapore, Germany and Slovenia. He submitted that, since the business of halal certification operates internationally, the plaintiff's reputation internationally is important to him and that this is not a case of a local trader trading locally.
Those submissions, with great respect to Mr Connell, only serve to emphasise the prospect that the plaintiff could provide particulars which better articulate the likelihood that an inference should be drawn as to publication in some particular individual jurisdictions as opposed to proceeding on the strength of a global claim that the cause of action should be maintainable in every jurisdiction in the world other than the United States.
In my view, the plaintiff should provide further and better particulars of the "worldwide" publication allegation or suffer the fate of having that allegation struck out.
The second issue raised by the defendants' application relates to the imputations. The first imputation objected to is imputation 16(c), which re-pleads an imputation struck out in my earlier judgment. The new imputation is:
That the plaintiff is a person who has values opposed to the fundamental human right and Australian value of freedom of religion, and Australian values of choice, a fair go, and freedom.
Ms Chrysanthou submitted that the imputation does not identify any defamatory act or condition that can be pleaded to. Mr Connell submitted that the effect of accusing a person of having values opposed to those fundamental rights and values is to say that he is a pariah, or "not one of us". He submitted that the ordinary, reasonable reader would understand the imputation to accuse the plaintiff of having values antithetical to those of ordinary, decent Australian citizens.
Those are all impressions which may emerge in one way or another from a viewing of the first matter complained of. The difficulty, however, is that the law of defamation in this jurisdiction, rightly or wrongly, does focus acutely on a meaning articulated with specificity rather than a general impression to be gleaned from defamatory matter.
The purpose of the requirement of specificity is to enable the defendant to plead such defences as may be available to him or her. The form of the imputation features specifically in the defences of truth and contextual truth in ss 25 and 26 of the Defamation Act 2005 (NSW). In my view, the imputation is apt to cause embarrassment in that respect. When one asks oneself what is the precise act or condition attributed to the plaintiff by the imputation which must be defended (if it can be), it is elusive, in my view.
My ruling as to imputation 16(c) is that it is to be struck out as being bad in form.
The second objection is to imputation 16(d), which is:
That the plaintiff was part of a push for instituting repressive sharia law in Australia.
In my earlier judgment, that imputation was found to be capable of being conveyed. The complaint now is that it is bad in form because it is not clear what is meant by the term "part of a push". In particular, Ms Chrysanthou submitted that the term "push" is colloquial and meaningless.
Mr Connell observed, I think in respect of a different imputation, that no barrister likes any other barrister's pleading and there is always room for argument as to whether an imputation is sufficiently precise, or could be pleaded with greater specificity, or indeed greater generality. That contention resonates with the observations of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, particularly at 137.
In my view, whilst there is perhaps a degree of generality in imputation 16(d), its meaning in the context of the content of the first matter complained of is tolerably clear. The objection to that imputation is rejected. The imputation will go to the jury.
The next objection is to imputation 16(e), which is:
That the plaintiff was part of a global push for Islamisation calculated to destroy Australian values of freedom and tolerance.
Ms Chrysanthou submitted that the imputation suffers from the same problems as imputation 16(d) by reason of the use of the phrase "part of a global push". She further submitted that the contention that a global push could be calculated to destroy Australian values of freedom and tolerance is illogical. On that basis, she submitted that the imputation is impossible to plead to and should be struck out.
In the case of this imputation, I would accept Ms Chrysanthou's submissions. The suggestion that "a push for Islamisation" could be calculated to destroy Australian values of freedom and tolerance is nonsensical. It is difficult to understand or give any sense to the "push" or movement referred to.
This imputation is in contrast to imputation 16(d), which identifies with specificity a push for the institution of a particular kind of law as the law of Australia. That is a concept which is readily understandable. The concept sought to be captured in imputation 16(e) is not. I would strike imputation 16(e) out of the pleading.
The next objection is to imputation 25(b), which is that the plaintiff sought to erode Australian values of freedom of religion, speech and democracy. In my view there is force in Ms Chrysanthou's contention that the imputation fails to distil any defamatory act. It is not clear what act is identified in the notion of seeking to erode Australian values.
Mr Connell submitted that the imputation obviously refers to the plaintiff's conduct of the business of halal certification. If that is the act or condition which is sought to be attributed to the plaintiff by the imputation and if it is contended that by that business a person could seek to erode Australian values then that should have been pleaded, but that is not what the imputation says. The imputation is impermissibly unclear and imprecise and should be struck out.
I would observe in fairness to Mr Connell the difficulty with this and other imputations is the task of translating the rhetoric of the views expressed in each matter complained of into the language of specificity required for a defamatory sting.
The next objection is to imputation 25(c), which is that the plaintiff was part of a conspiracy to destroy western civilisation. It is convenient to consider that imputation together with imputation 25(d), which is that the plaintiff was part of a conspiracy to achieve world domination. In my first judgment, each of those imputations was held to be capable of being conveyed. Ms Chrysanthou submitted, however, that each raises a fanciful, "comic book style concept" which is completely meaningless and incapable of being pleaded to.
Mr Connell responded that an allegation that is outrageous if it is made in a defamatory publication is defamatory and can give rise to a cause of action. In my view, the difficulty is that, in this instance, the imputation fails to distil itself from or rise above the elusive rhetoric of the matter complained of. As submitted by Ms Chrysanthou, it is difficult to see how the defendants can sensibly plead to an allegation of destruction of Western civilisation from within or conspiracy to achieve world domination.
I would accept that there is a measure of "comic book style" rhetoric to each of those imputations which renders them meaningless and impossible to respond to. Each of the imputations 25(c) and (d) will be struck out.
[2]
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: 23 July 2015