El-Mouelhy v QSociety of Australia Inc

Judgment

HER HONOUR: Proceedings for defamation are governed by a practice note (SC CL 4, promulgated on 5 September 2014). The practice note contemplates that such proceedings should ordinarily be able to be prepared for hearing with only two listings before the Court. At the first listing, the parties are expected to be ready to argue any objections to the statement of claim maintained by the defendant and the defendant is required to inform the Court whether the element of publication is admitted. At the second listing, the parties are expected to be ready to argue any objections to the defence and the reply and to make any application for interlocutory steps.
This is an action for defamation. The parties in these proceedings have had three rounds of argument in respect of the form of the plaintiff's pleadings. This judgment determines the matters raised in the third round. The earlier objections were determined in my judgments in El-Mouelhy v Q Society of Australia Inc [2015] NSWSC 545 and El-Mouelhy v Q Society of Australia Inc (No 2) [2015] NSWSC 990.
Unsurprisingly, there has been a degree of overlap in the issues raised at each hearing. Meeting the important requirement of maintaining a consistent approach has proved challenging.
The truncation of the process of determining the final state of the plaintiff's pleadings is not due to the conduct of one or other party exclusively. Each has made choices contributing to that course of events. The defendants sought a second opportunity to challenge the imputations. The plaintiff has pleaded new imputations plainly governed by previous rulings. The matters complained of pose their own challenges, conveying elusive and disparate ideas. Whatever the causes, it can nonetheless be said, in my view, that the time has come to move towards the second listing.

Second matter complained of

The next objection is to imputation 25(b), which is: That the plaintiff, through his conduct of the operations of the Halal Certification Authority in Australia, sought to erode the Australian values of freedom of religion, freedom of speech and democracy.
That imputation was pleaded to replace an imputation struck out in El-Mouelhy (No 2): That the plaintiff sought to erode Australian values of freedom of religion, speech and democracy.
The previous form of the imputation was struck out on the ground that it failed to distill any defamatory act. In the judgment at [34] I said: 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.
By those remarks, I did not mean to indicate my approval of an imputation in the form now propounded. The phrase "through his conduct of the operations of the Halal Certification Authority" does nothing to specify the defamatory act or condition allegedly attributed to the plaintiff by the matter complained of. That imputation should be struck out.
The next imputation objected to is 25(c): That the plaintiff in the conduct of the business of the Halal Certification Authority sought to advance the strategy of the Muslim brotherhood to sabotage Western institutions.
The objection is that the imputation is bad in form in that it is imprecise and fails to identify any act or condition allegedly attributed to the plaintiff by the matter complained of. In my view, there force in that contention. It has been said that a defamatory imputation must articulate the act allegedly attributed to the plaintiff with the specificity of an indictment. Care must be taken with such a comparison because an indictment often adopts the short form of reference to an offence. But the comparison with the particularity required of the Crown is a useful tool for analysing the degree of precision achieved in an imputation.
For example, in criminal proceedings for conspiracy to pervert the course of justice, it would not be enough for the Crown to allege that an accused, in the conduct of his business, sought to pervert the course of justice. The Crown would have to specify the physical acts alleged to have been committed by the accused and the state of mind with which those acts were alleged to have been committed. In my view, imputation 25(c) achieves no more than to make generic reference to the kind of conduct allegedly attributed to the plaintiff by the matter complained of without specifying that conduct.
The next objection is to imputation 25(d): That the plaintiff in the conduct of the operations of the Halal Certification Authority of Australia was acting with the objective of advancing an Islamic push for worldwide domination through obtaining control of industries including the production, transport and sale of goods and their financing.
The imputation was objected to on the grounds of form and capacity. I would uphold the objection as to form.
As with imputations 25(b) and (c), the only act or condition specified is "the conduct of the operations". The difficulty with that formulation is that it could refer to a broad range of activities. It is thus apt to cause embarrassment at the pleading stage and at the trial.
As to capacity, the second matter complained of makes some extravagant claims as to the objectives of Islamisation. Some might think it a stretch too far to attribute those objectives to the plaintiff but I think that would be an issue for the jury. However, since the imputation is bad for imprecision, it should be struck out.
The last objection is to imputations 25(g) and (h) as follows: 25(g) That the plaintiff so conducted himself as to give rise to reasonable grounds to suspect him of providing financial support to one or more extremist Islamic organisations. 25(h) That there are reasonable grounds for suspecting that the plaintiff has been providing financial assistance to one or more extremist Islamic organisations.
Following the withdrawal of the form objection based on Sergi, the only remaining objection is that those imputations are not reasonably capable of being conveyed by the second matter complained of. With some equivocation, I have reached the same conclusion as in respect of the similar imputations pleaded in respect of the first matter complained of. The second matter complained of conveys similar themes to those considered in the first matter complained of, and draws a connection between the business of halal certification and the many threats described by the presenter through financial support or assistance. Those imputations will go to the jury.

At a glance

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Judgment (4 paragraphs)

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Legislation Cited (4)

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