El-Mouelhy v QSociety of Australia Inc

Supreme Court of NSW|2015-11-20|Before: McCallum J

Judgment

HER HONOUR: As the title of this judgment suggests, this is my fourth interlocutory judgment in these proceedings. The third opened with the weary observation that actions for defamation are governed by a practice note (SC CL 4) which contemplates that the proceedings should ordinarily be able to be prepared for hearing with only two listings before the Court (referred to as the "first listing" and the "second listing"). The practice note specifies the matters that will be determined at each listing. It is intended to serve the overriding purpose of the law of civil procedure, which is to facilitate the resolution of the real issues in the proceedings in a manner that is just, quick and cheap: Civil Procedure Act 2005 (NSW), ss 56 to 60.
I noted that the parties in these proceedings have had three rounds of argument in respect of the form of the plaintiff's pleadings, that is, three "first listings": El-Mouelhy v Q Society of Australia Inc [2015] NSWSC 545; El-Mouelhy v Q Society of Australia Inc (No 2) [2015] NSWSC 990 and El-Mouelhy v Q Society of Australia Inc (No 3) [2015] NSWSC 1069.
I concluded those remarks by stating that the time had come for the parties to move towards the second listing. They did not go gentle into that good night. The second listing was on 20 November 2015. Technically, it was also the first listing of a "cross-claim" brought by the defendants alleging that they have been defamed by the plaintiff but, so far as the plaintiff's action is concerned, that was the occasion for making any application for discovery and interrogatories. The parties do wish to make such applications but, owing to the volume of correspondence and the number of disputes between them, were not ready to do so last Friday.

Contextual truth defence

There are three matters complained of by the plaintiff. The first is a video uploaded on YouTube by the defendants called "Understanding Halal Certification Schemes". The second is a presentation given by one of the defendants at a symposium convened by the defendants styled "The First International Symposium on Liberty and Islam in Australia". The third matter complained of is a video-recording of the symposium presentation also uploaded on YouTube.
The defendants have pleaded the following three contextual imputations (the third is not alleged to arise from the first matter complained of): 1. The plaintiff conducted a Halal certification business that was a waste of money because Halal certification in relation to most products is unnecessary to Muslims. 2. The plaintiff conducted a Halal certification scheme to make money and not for the purpose of promoting Sharia law. 3. The plaintiff conducted a Halal certification scheme that was useless because it was not trusted by Muslims.
The plaintiff seeks to have the whole defence struck out on three grounds: "(a) None of the contextual imputations is capable of being defamatory or capable, if true, of being such that any of the imputations pleaded by the plaintiff would not cause further harm to the plaintiff. (b) Alternatively, all of the contextual imputations, if defamatory, do not differ in substance from the plaintiff's imputations in 16(b) and (g) and 25(a) and (f). (c) That each of the contextual imputations be struck out as a matter of form; they are incoherent and fail to adequately identify an act or condition of the plaintiff. Further, the use of the word "scheme" in 28(ii) and 34(ii) and (iii) is embarrassing."
The third point may be disposed of quickly. I do not think there is any ambiguity or embarrassment in the use of the word "scheme". It is an ordinary English word of clear meaning.
Further, I am not persuaded that any of the imputations is incoherent or that the content of the relevant act or condition is inadequately distilled. Being pedantic, it may be noted that, according to the grammar of imputation (i), the term "a waste of money" describes the business, not the services offered by the business (Halal certification) whereas it is plain that the pleader meant to refer to the latter. The imputation would be clearer if it read: 1. The plaintiff conducted a business offering Halal certification that was a waste of money because Halal certification in relation to most products is unnecessary to Muslims.
The import of the imputation is nonetheless clear as it stands.
I apprehend the real substance of the form complaint is the issue raised by the first of Mr Connell's points set out above. The problem is not that the contextual imputations fail to identify an act or condition of the plaintiff. To say that a person wears green socks attributes him with an act (or perhaps a condition). The real question is whether it is an act or condition that has the capacity to harm his reputation, which is perhaps another way of expressing the complaint that none of the contextual imputations is capable of being defamatory or of satisfying the requirement of s 26(b) of the Defamation Act 2005 (NSW) ("the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations").
The argument raises an interesting question as to the operation of the defence of contextual truth under s 26 of the Defamation Act 2005 (NSW). The section has vexed litigants and courts alike; the jurisprudence has left what was recently described by Mr A T S Dawson of counsel (in unrelated proceedings in this list) as "a fertile and verdant landscape" for defendants. Mr Dawson was referring to the decisions in Besser v Kermode [2011] NSWCA 174; 81 NSWLR 157; Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369; 88 NSWLR 421; Rose v Allen & Unwin Pty Limited [2015] NSWSC 991; The Federal Capital Press of Australia Pty Ltd v Balzola [2015] NSWCA 285 and Fairfax Media Publications v Zeccola [2015] NSWCA 329.
Less generously, one critic has asserted (without explanation or analysis of any particular judgment) that "the judiciary has made life very difficult for the media" and that "the contextual truth defence has been made far too complex by the courts": see "The Year in Australian Media Law", www.pressfreedom.org.au. I confess I do not understand the intended content of the criticism. The issues raised by the cause of action for defamation and its various defences are intrinsically complex. They are indeed fertile ground for contests as to questions of meaning and truth; nowhere more so than in the case of the statutory defence of contextual truth. If there was a way in which the defence could be made simple, I doubt any court would not embrace it. Achieving simplicity in accordance with the guiding principles of the law of procedure (resolution of the real issues in a manner that is just, quick and cheap) is itself complex. Ultimately the court is constrained to determine the matters brought forward by the parties, and can do no more.
The present application brings forward for the Court's determination a difficult question raising a further complexity of the section. Should the Court strike out a contextual imputation on the ground that it is incapable of being defamatory or incapable, if true, of being such that any of the imputations pleaded by the plaintiff would not cause further harm to the plaintiff?
Ms Chrysanthou, who appears for the defendants, reminded me that I touched on those issues in my judgment in McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196. In the context of a consideration of the decision of Dalton J in Mizikovsky v Queensland Television Limited (No 3) [2011] QSC 375, I said at [19] to [24]: "19. Separately, a consideration of her Honour's analysis has prompted me to doubt whether a contextual imputation is liable to be struck out on the basis that it is not capable of being defamatory. It may be accepted that the premise of the defence is the existence of some additional defamatory sting not sued on by the plaintiff. However, the defence does not compare imputation with imputation. The essence of the defence 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. The essence of the defence is that if, viewed in its factual context, the defamatory publication was true enough that no further harm to reputation was done by the particular imputations selected by the plaintiff, no remedy should lie. 20. Thus, as explained by Spigelman CJ in John Fairfax Publications v Blake [2001] NSWCA 434 at [5] (with whom Rolfe AJA agreed at [70]), in determining whether the defence should go to the jury, "the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself". 21. The decision in Blake was of course concerned with the defence of contextual truth as it stood under the Defamation Act 1974 and must be read with an understanding of the changes effected by the 2005 Act. As recently explained by the Court of Appeal in Besser v Kermode [2011] NSWCA 174, the defence under the 2005 Act must defeat the whole defamatory matter, which is to be understood to mean all of the defamatory stings complained of by the plaintiff: at [78] per McColl JA; Beazley and Giles JJA agreeing at [1] and [2] respectively. 22. However, for the purpose of a strike out application, it is doubtful (in my view) whether the Court should assume that all of the defamatory meanings complained of by the plaintiff will be established to have been conveyed. In my view, the principles applicable to strike-out applications would require the Court to 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). 23. It follows that a contextual imputation is not liable to be struck out for want of defamatory sting unless (taking that approach) it is not open, on the strength of the facts, matters and circumstances relied upon to support all of the contextual imputations, to reach the conclusion articulated in the section (namely, that because of the truth of those matters the plaintiff's defamatory imputations do not further harm his or her reputation). 24. Separately, the requirement to focus on the facts, matters and circumstances relied upon to prove the substantial truth of the contextual imputations demonstrates the difficulty of establishing, in a case such as the present, that a contextual imputation should be struck out or disallowed on the basis that the imputation is not capable of satisfying the requirements of section 26. As already noted, the determination of that issue has been deferred for further consideration in the present case."
Relying particularly on my conclusion at [23], Ms Chrysanthou submitted that the contextual imputations in this case should not be struck out for want of defamatory sting unless (taking that approach) it is not open, on the strength of the facts, matters and circumstances relied upon to support all of the contextual imputations, to reach the conclusion that because of the truth of those matters the plaintiff's defamatory imputations do not further harm his or her reputation. In that context, she noted that the defendants rely upon the same particulars to sustain the contextual truth defence as for the truth defence.
It must nonetheless be accepted, as noted in my reasons in McMahon set out above, that the premise of the defence is the existence of some additional defamatory sting not sued on by the plaintiff. That analysis of the section at least appears to have survived the recent decision of the Court of Appeal in Zeccola. The Court there reiterated (at [70]) what had been said in Kermode; that the purpose of the defence is that a plaintiff should "not be able to avoid serious stings in defamatory matter by selective pleading".
I do not think the second contextual imputation ("the plaintiff conducted a Halal certification scheme to make money and not for the purpose of promoting Sharia law") contains any sting. It is, in my view, incapable of meeting the requirements of the section. The Court in Zeccola approved the approach of determining that issue on an interlocutory basis: at [89].
As to the first and third contextual imputations, I am not persuaded that it is appropriate to strike out those imputations on that ground at the interlocutory stage of the proceedings, having regard to the principles considered in Blake, discussed in my judgment in McMahon set out above. Specifically, I cannot be confident at this stage of the proceedings that the material to be relied upon to establish the truth of those contextual imputations will be incapable of meeting the requirement of the statute.
A more difficult question is raised by the contention that the imputations do not differ in substance from the plaintiff's imputations 16(b) and (g) and 25(a) and (f). Those imputations are: "16(b) That the Plaintiff sought to mislead and deceive the general public in the conduct of the Halal certification business which he conducted. 16(g) That the Plaintiff is a religious hypocrite who operates a facility for Halal certification while pretending to promote religious observance by fellow Muslims but in reality conducted as a scheme for personal profit which disregards the true requirements of their religion. 25(a) That the Plaintiff is a religious hypocrite who was only in the halal certification business to make money. 25(f) That the Plaintiff's Halal certification business was a dishonest scheme conducted in a dishonest manner."
For ease of reference, I repeat that the contextual imputations under consideration are: 1. The plaintiff conducted a Halal certification business that was a waste of money because Halal certification in relation to most products is unnecessary to Muslims. 2. The plaintiff conducted a Halal certification scheme that was useless because it was not trusted by Muslims.
As much as it might simplify the proceedings to hold otherwise, I think I am constrained to hold that the contextual imputations do differ in substance from the plaintiff's. The plaintiff's imputations speak of hypocrisy and dishonesty. The contextual imputations are directed to conduct that is rather a social vice than a moral vice, that of inviting food retailers to buy a service that is a waste of their money because it is either not necessary for (imputation (i)) or not trusted by (imputation (iii)) its target consumer group.
For those reasons, I reject the plaintiff's application as to that part of the defence.

YouTube Analytics Report

The plaintiff served the defendants with a notice to produce the following documents: "2. The documents referred to in paragraphs 10(a) and (b) and 21(a) and (b) of the Defence."
In paragraphs 10(a) and (b) of the defence, the defendants: "(a) admit that YouTube asserts that there have been in excess of 60,000 views of the First Video on YouTube; (b) say that the number of "views" does not evidence the extent of publication of the First Video because the length of the video is 32 minutes and 52 seconds, the average time for any view is 8 minutes and 20 seconds and the only mention of the Plaintiff is at 23 minutes and 7 seconds into the video."
Paragraphs 21(a) and (b) of the defence are in similar terms; the defendants: "(a) admit that YouTube asserts that there have been in excess of 13,500 views of the Second Video on YouTube; (b) say that the number of "views" does not evidence the extent of publication of the Second Video which is 25 minutes and 9 seconds in duration, and the average time for any view is 9 minutes and 3 seconds in duration."
At the outset of the hearing, Ms Chrysanthou informed the Court that the response to the notice was that there is nothing to produce. She explained that the matters pleaded (set out above) were based not on any document held by the defendants but on what any person can plainly see from the internet, that is, the information provided openly by YouTube as to the numbers of times each video has been viewed.
Unhappy with that response, Mr Connell pressed for what he termed an order for discovery. Ms Chrysanthou responded first by noting that discovery is a matter for the second listing which, as already explained, the parties were not ready to argue.
Ms Chrysanthou acknowledged that the defendants will probably be ordered to answer interrogatories as to the scope of publication of the matters complained of but submitted that there is no warrant for any intervening interlocutory step. Although there is force in that complaint, since the application was brought forward and argued, it is appropriate to determine it.
The document sought is a "YouTube Analytics Report". An affidavit sworn by the plaintiff's solicitor explained "YouTube Analytics provides to the owner of a [YouTube] video demographic and geographic data as to the accessing of videos, including the country of access and length of access".
The issue to which that information would go is the extent of publication of the first and third matters complained of (the two YouTube videos). That is undoubtedly an issue in the proceedings.
Mr Connell relied on the decision of Nicholas J in Ahmed v John Fairfax Publications Pty Ltd [2006] NSWSC 11. That was an application for an order for discovery so as to establish that the defendant published the matters complained of on occasions and in places beyond the states and territories of Australia which the plaintiff had to that point been unable to specify. His Honour said at [5]: "By r 21.2(1)(a) the court may order a party to give discovery of documents within a specified class or classes. The rule makes no provision as to when discovery may be ordered, so an order may be made at any stage of the proceedings. The application of the general rule of practice to defer an order until the close of pleadings will depend upon the circumstances of the particular case. The court's unfettered discretion must be exercised judicially, and with regard to the overriding purpose of the Civil Procedure Act 2005 (the Act) and of rules of court to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 56(1), (2), s 57, s 58(2)(a)). By s 58(1) the court, in deciding whether to make any order or direction, including those as to practice and procedure, is required to act in accordance with the dictates of justice. Section 58(2)(b) provides that for the purpose of determining what are the dictates of justice in a particular case the court may have regard to various matters to the extent to which it considers them relevant, including (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, and (vii) such other matters as the court considers relevant in the circumstances of the case. In short, it is plain that the object of the Act and rules is to guide the court in its function to do justice between the parties and to facilitate the just, quick and cheap resolution of the real issues in the proceedings."
Ahmed is authority for the proposition that an order for the discovery of documents going to the issue of the extent of publication can, in an appropriate case, be made before the pleadings are closed. However, I do not think the present application is properly one for discovery. It is quite plain from the material annexed to the solicitor's affidavit that the order sought would require the defendants to create a document, not to produce an existing document. Mr Connell contended otherwise, relying on the decision of Garling J in Con Ange v Fairfax Media Publications Pty Ltd [2012] NSWSC 1200 at [49] to [53]. I do not think that decision assists on the present issue.
As accepted by Ms Chrysanthou, the extent of publication would properly be the subject of an interrogatory which the defendants will have to answer by reference to any information in their control. If that includes information available to the defendants through a YouTube Analytics Report, the plaintiff will have access to that information at that stage.

Application for a jury of twelve

Section 20(1) of the Jury Act 1977 (NSW) provides that where civil proceedings are to be tried with a jury, the jury shall consist of 4 persons. Section 20(2) confers power, in the case of proceedings in the Supreme Court only, to order that the proceedings be tried with a jury of 12 persons.
The defendants did not oppose the order sought by the plaintiff, taking the position that it was a matter for the court. However, Ms Chrysanthou provided a helpful short written outline of the relevant principles, as follows: The principles relevant in considering such an application were considered by Nicholas J in Waterhouse v The Age and Ors [2012] NSWSC 1349 at [9] to [12]. In substance, the fundamental question is whether the case is one more fitting to be tired by a jury of 12 than one of 4 and relevant factors in making that determination include the nature of the publication sued upon, the subject matter discovered, and the public prominence of the plaintiff: Ra v Nationwide News Pty Limited (2009) 182 FCR 148 at [34] to [37] per Rares J and Howes v ACP Magazines Limited & Ors [2013] NSWSC 88 at [8] to [10] per Nicholas J.
Apart from tendering a newspaper article, the plaintiff put on no evidence to support the application. The basis for the application was the contention that there is "a large group of people in the community who are stirred up by this anti-Halal campaign and…stirred up to very strong feelings towards Muslims".
As it happened, the application was heard shortly after the events in Paris of 13 November 2015, in which over 120 people were killed. Responsibility for those attacks was claimed by the Muslim extremist group, ISIS. Mr Connell submitted that those recent events have highlighted our consciousness of anti-Muslim feelings.
Mr Connell relied on my decision in Wood v Channel Seven Sydney Pty Limited; Wood v Nationwide News Pty Limited [2014] NSWSC 1527. The principles for exercising the power to order a jury of twelve rather than four are summarised in that judgment.
The plaintiff in that case was Gordon Wood, who had been convicted of murdering his girlfriend. His conviction was quashed by the Court of Criminal Appeal and a verdict of acquittal was entered, following which he sued a number of media organisations for defaming him by attributing him with her murder. The newspapers pleaded defences of truth. The defamation action would accordingly have been, in substance, a murder trial with a lower standard of proof. That was a strong consideration in my determination to order a jury of twelve in that case.
I have not otherwise been persuaded in any defamation case to order that the proceedings be tried with a jury of twelve. That is not to say there will not be other cases that warrant the making of such an order. However, in my view, considerable weight must be given to the fact that Parliament has determined four shall be the number of jurors in civil trials. The discretionary power to order a larger jury must begin with the recognition that the default position makes a distinction according to the importance of the interest at stake.
In the case of criminal proceedings, when the liberty of a person is at stake, there is a single guiding principle which takes priority over all others, which is to ensure that the trial is fair. Implicitly, it is accepted that the larger jury is fairer when the stakes are so high. However, the guiding principles in civil proceedings are deliberately different from those that guide criminal proceedings. In civil proceedings, the determination of the issues should be just, but also quick and cheap. In that different rubric it has been determined by the legislature that the requirement of fairness will ordinarily be served by providing a smaller tribunal of fact.
The fact that the power to order an enlarged number of jurors is confined to proceedings in the Supreme Court reinforces my apprehension that parliament intended to achieve a measure of proportionality between the cost of providing the tribunal and the interest at stake. I do not of course mean to suggest that the importance of vindicating the reputation of a defamed person should be measured in dollars alone, but it must be recognised in that context that general damages in proceedings for defamation are capped at a figure well below the jurisdictional limit of the District Court.
In the absence of any specific evidence as to the position of the plaintiff, the argument reduced to the proposition that New South Wales jurors may not like Muslims and may not be able to be trusted to give them a fair hearing. Even leaving aside the obvious proposition that Muslims are potential jurors too, I reject each of those propositions.
The argument also proceeded on the difficult assumption that those risks are diluted by the selection of a larger group. There is some (scant) mathematical warrant for that submission in the provisions dealing with majority verdicts. If the occasion for taking a majority verdict arises, with a jury of four, the decision of three can be taken as a verdict whereas with a larger jury, the decision of eight can be taken from a jury of twelve, eleven, ten or nine (noting that there is greater scope for attrition in the case of a large civil jury, which may by the end of the trial have reduced to eight). However, the submission otherwise makes social assumptions which may not be warranted. In my view, the randomness of jury selection (and of the human condition) precludes any assumption one way or the other as to the likely diluting effect on any bigot of any number of impartial jurors.
For those reasons, the application for a jury of twelve must be dismissed.

Orders

The orders are: 1. Contextual imputation (ii) struck out; plaintiff's application to have the defence of contextual truth struck out otherwise dismissed. 2. Plaintiff's application for discovery is dismissed. 3. Plaintiff's application for an order that the proceedings be tried with a jury of twelve dismissed.

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: 02 December 2015

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