Elzahed v Commonwealth of Australia

District Court of NSW|2015-11-12|Before: Levine J

6 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Echo Publications Pty Ltd v Tucker and Anor; Fast Buck$ v Tucker and Anor [2007] NSWCA 73 Ghosh v NineMSN Pty Ltd [2015] NSWCA 334 Harrigan v Jones [2000] NSWSC 814 Jameel (Yousef) v Dow Jones & Co Inc [2005] All ER (D) 43 (Feb) Kang v Australian Broadcasting Corporation [2015] NSWSC 893 Karabay v Carr [2014] NSWCA 143 Mundey v Askin [1982] 2 NSWLR 369 Piscioneri v Brisciani [2015] ACTSC 106 Ralston v Fomich (1992) 66 BCLR (2d) 166 at 169 (SC) Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265 Tory v Megna [2007] NSWCA 13 Trantum v McDowell [2007] NSWCA 138 Travers v Shane (1995) 4 Mass L Rptr 141 Tumbarella v Kroger Co 85 Mich App 482, 271 NW 2d 284 (1978) Vissaritis v Hatzikiriakos [2013] NSWCA 474 Ward v Zelikovsky (1994) 136 NJ 516, 643 A 2d 972 Wood v Branson (1952) 3 SALR 369 Zarth v Williamson [2006] NSWCA 246 Zhao v Posa and Ors [2004] NSWCA 184 Texts Cited: Supreme Court Practice Note SC CL 4 Category: Procedural and other rulings Parties: First Plaintiff: Moutia Elzahed Second Plaintiff: Hamdi Alqudsi Third Plaintiff: XX by tutor Sanie Fawal Fourth Plaintiff: XY by tutor Sanie Fawal First Defendant: Commonwealth of Australia Second Defendant: State of New South Wales Representation: Counsel: Plaintiffs: Mr G Foster First Defendant: Ms R Deane (solicitor) Second Defendant: Ms S T Chrysanthou

The applications before the court

The four plaintiffs (a married couple and their two sons, aged 14 and 16) commenced proceedings on 17 October 2014 for defamation, assault, wrongful arrest and false imprisonment arising from events which occurred on 18 September 2014. On that date, they assert, police officers entered their home at Revesby, handcuffed them, searched the premises and caused property damage. Two statements made by police in the course of those events are the subject of a claim for defamation. The conduct relied upon to evidence wrongful arrest and false imprisonment is unspecified in the pleadings, but I understand that the second plaintiff, Mr Hamdi Alqudsi, has since been the subject of criminal charges.
These proceedings were listed for hearing on 12 November 2015 for the first, third and fourth plaintiffs to show cause why these proceedings should not be dismissed for failure to comply with orders directing them to answer a request for particulars (dated 25 June 2015) by 7 October 2015. The first, third and fourth plaintiffs' application is for the court to adjourn the show cause hearing because counsel is unavailable. When that application was refused, the plaintiffs' counsel took no further part in the applications.
The defendants ask the court to dismiss the defamation proceedings brought by the first, third and fourth plaintiffs (referred to hereafter as "the plaintiffs", they being the parties affected by this application) on the "show cause" basis, as the particulars, when finally supplied on the day before this hearing, are manifestly inadequate, in circumstances where there is a prior history of non-compliance. The defendants also referred to the principles of proportionality pursuant to ss 60 and 61 Civil Procedure Act 2005 (NSW) and r 12.7 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").
There are two preliminary points to note: 1. This is not the first time an application has been foreshadowed to strike out part of the statement of claim. An application to strike out the balance of the claim was foreshadowed on 6 February 2015 on the basis that the pleading refers to the plaintiffs each suffering physical, "psychiatric and psychological" injury, but the plaintiffs had failed to comply with rr 15.12 and 15.13 UCPR or to serve medical reports. The plaintiffs met that challenge by stating that they do not intend to make any claim for personal injury of any kind, or to serve any medical reports, and orders were made to that effect. Accordingly, the claims for assault, wrongful arrest and false imprisonment remain on the record, but on that limited basis. 2. There are problems with the pleadings of the claims other than defamation, such as the failure to particularise punitive damages beyond the generalised statement of "contumelious disregard". However, defences have been filed, and the sole application before me at the present is the application to dismiss the defamation claim, following which the remaining claims can be transferred to the general list, in accordance with the second defendant's initial request to do so, made on 6 February 2015.

The relevant legal principles

The history and use of the "show cause" hearing under the repealed r 18.3 District Court Rules 1973 (NSW) is explained by the NSW Court of Appeal in Karabay v Carr [2014] NSWCA 143 at [5]-[6] and, under ss 56-58 Civil Procedure Act 2005 (NSW), in Vissaritis v Hatzikiriakos [2013] NSWCA 474 at [1]-[8].
The circumstances in which a "show cause" hearing should be adjourned should take into account the general principles in relation to applications for adjournments as set out in ss 56, 58(1)(a) and 66 Civil Procedure Act 2005 (NSW). An application by a party to adjourn proceedings where that party is already in default is a matter of some seriousness.
The defendants' application for summary dismissal under ss 60 and 61 and UCPR r 12.7 on proportionality principles proceeds on the same two bases as those put forward in Ghosh v NineMSN Pty Ltd [2015] NSWCA 334; namely: 1. The plaintiffs have failed to conduct the defamation proceedings with expedition (Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288; Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244). 2. The proceedings are an abuse of process, in the sense that the interest at stake is disproportionate to the resources of the Court and of the parties that will have to be expended to determine the plaintiff's claim (Bleyer v Google Inc [2014] NSWSC 897). An order of this kind would be made rarely, in the absence of factors additional to mere delay: Ghosh v NineMSN Pty Ltd at [44] per Macfarlan JA.

The matters complained of

The alleged statements made to the first plaintiff are pleaded to be as follows: "Shut up bitch", "Get out of the fucking bed bitch", "bitch" (Statement of Claim, paragraph 3).
The imputation said to arise from each of these publications is that the plaintiff is "an unpleasant woman" (Statement of Claim, paragraph 4).
At the same time the officers of the Australian Federal Police said of and concerning the third and fourth plaintiffs, who are 14 and 16 years of age, words to the effect: "They are terrorists" (Statement of Claim, paragraph 5).
The imputations pleaded are: 1. The third plaintiff is a terrorist. 2. The third plaintiff is a danger to the Australian public. 3. The fourth plaintiff is a terrorist. 4. The fourth plaintiff is a danger to the Australian public.

The conduct of the proceedings

The statement of claim was served on the first defendant, the Commonwealth of Australia, and on 14 November 2014, the first return date, the matter was stood over to 5 December 2014. On 4 December 2014, the plaintiffs filed an Amended Statement of Claim naming the State of New South Wales as the second defendant. As the Amended Statement of Claim had not been served on the second defendant, the proceedings were stood over to 6 February 2015 for directions to enable service to occur.
On 6 February 2015, the first of a series of timetables was made. The plaintiffs' failure to comply with the timetable in these proceedings, for the period from 6 February 2015 up until today, is the background to the show cause application was listed for hearing.
Only the defamation claim is the subject of delay. The other claims are ready for hearing, in that the plaintiffs have indicated they do not propose to serve any medical or other evidence in relation to the damages claimed.

The plaintiffs' application for adjournment of the show cause application

Mr Foster of counsel appeared for the plaintiff. He sought an adjournment of this show cause application on the basis of the ill-health of counsel with the carriage of the matter, Mr Rasmussen. He did not have instructions to appear on the show cause application. After I refused the application to adjourn, he was excused from further conduct of the proceedings. The reasons for my refusal are set out below.

The plaintiffs' delays in relation to the defamation claims

The delays complained of are as follows: 1. The first, third and fourth plaintiffs' failure to answer the request for particulars of the statement of claim. These answers have now been provided, and this complaint is of limited relevance to the application before me. 2. The first, third and fourth plaintiffs' failure to answer the request for particulars of the Reply (sent to them on 25 June 2015) by 7 October 2015, in accordance with the show cause orders. The defendants additionally submit that the Reply is hopelessly drafted and that the answers to particulars provided the day before this hearing are incapable of amounting to particulars of malice. 3. The plaintiffs' failure to answer the defendants' correspondence concerning discovery, without which the matter cannot proceed further.

The plaintiffs' delay in answering requests for particulars of the statement of claim

A request for further and better particulars of the statement of claim was sent by the first defendant on 21 January 2015 and by the second defendant on 4 February 2015. Accordingly, orders were made by me for answers to be provided by 6 March 2015, so that the defendants could file and serve their defences on or before 2 April 2015. The proceedings were stood over to 16 April 2015 for further orders.
There was no answer to the request for particulars by the due date of 6 March 2015 or to a follow-up letter sent by the first defendant on 12 March 2015, or to a further follow-up letter from the first defendant dated 7 April 2015. When the matter came before the court on 16 April 2015 this still had not been done. On 16 April 2015, I extended time for the plaintiffs to answer the requests for particulars to 28 April 2015 and made an order for the plaintiffs to pay the defendants' costs thrown away by reason of the failure to answer particulars, including the costs of the appearance on 16 April 2015 and the follow-up correspondence from the solicitors for the defendants. Those particulars were provided on 28 April 2015 and as a result, on 30 April 2015 orders were made for defences to be filed and served. Those defences were served, and this delay, although regrettable, is now cured.

Delay in answering request for particulars of the Reply and correspondence about discovery

On 30 April 2015, a timetable was made for the filing of defences and a Reply and for the proceedings to stand over to 18 June 2015. The Reply was filed in court on 18 June 2015, and consisted of the following claims: 1. The second defendant's servants or agents knew, or were wilfully blind to, or failed to make inquiries concerning, the truth or falsity of the matters (namely that the first plaintiff was a bitch and the third and fourth plaintiffs were terrorists); 2. The publications were intended to injure or denigrate the plaintiffs; and 3. The publications were solely motivated by ill will.
Although not canvassed during this hearing, there are many problems with both the form and content of the Reply. These problems include: 1. The need to address the issue of malice in relation to each of the plaintiffs individually; 2. The undesirability of wrapping up knowledge of the falsity, wilful blindness and failure to inquire in one particular, let alone in relation to three different plaintiffs; 3. The difficulties attendant upon particulars of malice in this generalised form (as to which see Harrigan v Jones [2000] NSWSC 814, where all the particulars, including several similar to those pleaded here, were struck out).
A letter from the second defendant to the solicitors for the plaintiffs dated 25 June 2015 complained: "I refer to the Reply filed on 18 June 2015 in the above matter. It is hopelessly inadequately particularised and liable to be struck out: 1. No particulars have been provided in support of the allegation that the second defendant's police officers knew that the matters complained of were untrue. 2. No particulars have been provided in support of the allegation that NSW police officers acted in wilful blindness of the truth or falsity of the matters complained of. 3. No particulars have been provided in support of the allegation that NSW police officers intended to injure and denigrate the plaintiffs. 4. No particulars have been provided in support of the allegation that NSW police officers were solely motivated by ill will towards the plaintiffs. In the absence of adequate particulars being provided to support these serious allegations within 7 days, I will move to have the Reply struck out. I further refer to your letter dated 13 May 2015, which was received on 18 June 2015. Your response in relation to the particulars sought is inadequate. I note that the second defendant will object to any evidence being led at trial that falls outside the particulars provided. As to your assertion about your clients' anxiety etc, any such evidence is irrelevant and inadmissible in light of the plaintiffs' election to not to pursue any claim for damages for personal injury. Objection will be taken to the leading of such evidence at trial. In relation to the final paragraph of your letter, in light of the fact that no "interlocutory judgment" was signed on 29 May 2015, and that your assumption about the Defence was incorrect, I assume that the plaintiffs will not be making the foreshadowed application. I reserve my client's right to tender this letter, including on the question of costs."
No answer was received to this letter during the 7-day period referred to. The second defendant continued to conduct the litigation with expedition, including serving categories of documents for discovery on 2 July 2015. After much prompting, the plaintiffs served their categories of documents seven weeks late. On 26 August 2015, the second defendant wrote concerning the plaintiffs' failure to serve their List of Documents, requesting them to relist the proceedings to seek an extension of the timetable.
The proceedings were listed for directions on 1 October 2015 and the second defendant provided short minutes of order on 30 September 2015, asking the plaintiffs to agree to the making of those orders. The plaintiffs' solicitors did not reply to that correspondence and did not attend on 1 October 2015.
The show cause hearing was ordered as a result of the combined effect of the failures to comply with timetables, the complaints of inadequacy of the Reply and the failure to attend court on 1 October 2015. The plaintiffs were given an extension of a week to comply with their obligations to provide particulars of the Reply by 7 October. The plaintiffs did not do so, and did not reply to the second defendant's letter of 15 October 2015 objecting to categories of discovery.
On 6 November 2015 the second defendant served the affidavit of Mr Mellican, affirmed on 4 November 2015. Ms Burrows, the solicitors for the plaintiffs wrote to the second defendant requesting an adjournment of the 12 November 2015, on the basis that she was interstate and counsel unavailable. When this was refused, Ms Burrows wrote to the registrar of this court requesting an adjournment.
On 11 November 2015 an answer to particulars of the Reply was provided. Those particulars are deficient. Although Ms Chrysanthou did not dwell on the deficiencies at length, she specifically mentioned: 1. The particulars acknowledge that the second defendants had the plaintiffs under observation in their home for some time, and received intelligence reports about them. In those circumstances, any claim of "failure to inquire" was difficult to understand. 2. The claim that because the third and fourth defendants were aged 16 and 14 that they were incapable of being terrorists was both unfortunate and inadequate. 3. There was no attempt made to answer any but the first particular, as the other answers consisted of statements such as "the same facts… are here repeated as if set out seriatim", when the particulars sought related to entirely different matters. 4. The plaintiffs did, however, acknowledge that the inclusion of the second plaintiff in the Reply was an error, in that he was not bringing a claim for defamation.

The plaintiffs' unreadiness for the show cause hearing on 12 November 2015

The plaintiffs' counsel, Mr Foster, was only briefed to seek an adjournment and to explain to the court that the plaintiffs' failure to appear on 1 October was not intended to be a discourtesy to the court as it was the result of a misunderstanding by counsel for the plaintiff.
Mr Foster tendered an affidavit of Ms Burrows sworn on 12 November 2015 in his chambers, and advised that she was not interstate but was nevertheless unavailable to attend. He sought an adjournment on the basis of an illness that the plaintiff's counsel, Mr Rasmussen had contracted, at the beginning of November, adding that he would be unwell for a further one to two weeks.
Ms Chrysanthou submitted, and I agree, that the delays in this litigation are not Mr Rasmussen's fault as being due to his illness. The plaintiffs' delay in the defamation claim has been at every step along the way.

The refusal of the plaintiffs' request for an adjournment

I am satisfied that Mr Rasmussen's conduct is in no way to blame for the delay by the plaintiffs bringing the defamation proceedings. I fail to see how his inability to attend would constitute a basis for adjourning this application.
If the plaintiffs bringing the defamation proceedings had acknowledged a need to replead the Reply and to provide proper particulars as soon as Mr Rasmussen was able to do so, as well as offered to pay the costs of the defendants, this would have gone a long way towards the granting of an adjournment. However, the plaintiffs were not even prepared to pay the costs of the 1 October 2015 hearing at which they were unrepresented, let alone the costs of the adjourned show cause application.
It was for these reasons that I refused the application for adjournment.

Should the proceedings be dismissed for failure to show cause?

Ms Chrysanthou relied upon Kang v Australian Broadcasting Corporation [2015] NSWSC 893, where McCallum J dismissed defamation proceedings under a "show cause" notice issued pursuant to the Supreme Court Practice Note SC CL 4 paragraph 21, UCPR r 12.7 and ss 60 and 61 Civil Procedure Act 2005 (NSW).
The facts in those proceedings were different, in that the delay was longer (because of the delay in commencement of the proceedings) and at a much earlier stage of the proceedings, both of which are factors going in the favour of the plaintiffs in this litigation, as the proceedings were commenced expeditiously and have managed to get as far as the giving of categories of documents. Mr Kang's delay resulted from his having commenced on the last day of the limitation period and appeared for himself for some time, during which time the action failed to progress. Mr Kang then retained lawyers and, when his claim still failed to progress, attempted to blame them (at [11]). McCallum J considered Mr Kang's affidavit was "less than full and frank" (at [18]) and that Mr Kang was a "reluctant gladiator" (at [21] - [24], citing Bi v Mourad [2010] NSWCA 17). Her Honour was also critical of him for only serving the outstanding document the day before the show cause hearing (at [24]), which I note also occurred here. However, there is little other factual similarity apart from the generalised delay.
The unacceptability of delay in litigation generally has been underlined by the many decisions referring to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. Delay in defamation proceedings is, however, much more likely to result in the dismissal of proceedings than would be the case with other causes of action, and the principles applied by McCallum J in Kang v Australian Broadcasting Corporation are equally applicable to this case. Defamation actions raise complex questions of law and are subject to strict case management regimes which are in addition to, and not a replacement for, the requirements placed on litigants by ss 56 - 62 Civil Procedure Act 2005 (NSW). Delays which might be acceptable in other forms of litigation are not acceptable in defamation. This is the rationale behind the one-year limitation period, the reluctance of the courts to permit repeated amendments and the requirement for parties to prosecute their claims diligently.
That said, the real issue is not the plaintiffs' failure to attend court or answer correspondence, or even their past defaults. The problem is the failure of the three plaintiffs bringing proceedings for defamation to identify crucial elements in their case, and to do so in accordance with extensions of timetables over some months. If the plaintiffs had provided a clear and comprehensive set of answers to particulars (and, better still, a properly pleaded Reply) I would not have considered summarily dismissing these proceedings.
As was the case in Kang v Australian Broadcasting Corporation (at [24]), I can have no confidence in the future that the first, third and fourth plaintiffs have any intention of complying with their obligations under s 56 in providing a properly pleaded and particularised Reply, complying with their discovery obligations, or indeed conducting the defamation claims at all.
Having regard to the hopelessness of the Reply and particulars provided, it would have to be struck out. That would raise issues as to whether the three plaintiffs suing for defamation should be granted leave to replead. Given the conduct of the case to date, the likelihood of these errors being remedied is low.
The first defendant has not pleaded defences requiring a Reply. Should the defamation action be permitted to proceed against the first defendant only? That would be a most unfair result for the first defendant, and unlikely to enable the issues at the trial to be dealt with properly, given the first and second defendants' joint participation in the raids in which the four plaintiffs were arrested.
I have also taken into account the issues set out in more detail below in relation to the proportionality claims, namely the weakness of the first plaintiff's claim, the very limited publication and the overlap of the other causes of action with the damages sought for the defamation claim.
The first, third and fourth plaintiffs' inadequate pleading and particularisation of vital issues in this litigation is "concerning" (Kang v Australian Broadcasting Corporation at [24]) and gives me no confidence that these proceedings can move forward. Accordingly, the dictates of justice require that the proceedings be dismissed.
In the event that I have erred in this finding I would also strike out these proceedings on the principles of proportionality set out in Bleyer v Google Inc [2014] NSWSC 897. This was an application brought by the defendants, as opposed to the show cause order that I made. Although prior to the Civil Procedure Act 2005 (NSW) there was an "ocean of difference" (Zhao v Posa and Ors [2004] NSWCA 184 at [68]) between these two bases for dismissal of proceedings, it is arguable that the application of the same legislative provisions and principles means that this is now a distinction without a difference.

The proportionality argument

The second basis upon which the defendants seek dismissal of the claim is that of proportionality. These closely resembled two of the three bases upon which the proceedings in Bleyer were dismissed, namely the very limited publication and: 1. The plaintiff has a full remedy for the events on the night in question in the remaining causes of action; alternatively, the overlap between the claims for defamation with the claims for assault, wrongful arrest and false imprisonment. 2. The limited nature of the publications, in circumstances where the only persons who heard the matters complained of would be the other plaintiffs (assuming they heard what was said) or the defendant's servant or agent or his colleagues (assuming they heard what was said) mean that damages will be very limited. 3. The success of defences such as unlikelihood of harm or, if the words spoken to the wife were heard by her husband, spousal immunity. In particular, the first matter complained of, if the words were established as having been spoken, was likely to be held to be vulgar abuse. 4. The added complexity that a defamation claim brings to what would otherwise be a claim for assault, wrongful arrest and false imprisonment which is (again, noting the concession of the plaintiffs that no medical evidence will be relied upon) ready for hearing. This includes the possibility that a party will requisition a jury and the complexity of defences such as qualified privilege, in circumstances where the plaintiff's Reply is manifestly inadequate, the imputations poorly drafted and the matter complained of incomplete. 5. The plaintiffs still have a full damages remedy for the words spoken in their existing claims, and additionally have the benefit of uncapped general damages and punitive damages. They should not be permitted to "double dip" by claiming defamation damages as well.

The plaintiffs have a full or substantial remedy in the remaining claims

The poor drafting of the statement of claim obscures the reality that the plaintiffs are, in fact, claiming damages for defamation for conduct which forms part of the wider picture of the words and actions relied upon by them in relation to the remaining claims. I particularly note: 1. The pleader is required to set out the whole of the publication. If other words were spoken, such as words of arrest, or of suspicion of committing a crime, they must be included. Are these words the whole of the text of the matter complained of? If the words of arrest are the subject of the claim then there is substantial overlap with the conduct of the police officers in relation to the remaining causes of action. 2. Although framed only as a claim for slander based on the words, or (since the plaintiffs were being arrested at the time) the reality of the pleading is that this is claim for a slander or slanders by conduct. 3. Slander by conduct is generally pleaded as the cause of action where there is a "dramatic pantomime" of some kind (for example, in Cook v Cox [1812] 105 ER 552. Lord Ellenborough CJ gave the illustration of a person holding up an empty purse). Actions for slander by conduct, where the actions are a part of the words, are sometimes brought for what are colloquially referred to as "shoplifting cases" (Tumbarella v Kroger Co 85 Mich App 482, 271 NW 2d 284 (1978)). In Bishop v New South Wales (Supreme Court of New South Wales, Levine J, 12 March 1998, unreported), Bishop v New South Wales [2000] NSWSC 842, Bishop v New South Wales [2000] NSWSC 1042) the plaintiff brought proceedings over his portrayal in an actual pantomime, namely a theatrical performance in which he was portrayed. The point is that, if this is the real nature of the defamation, there is substantial overlap between the defamation and the remaining claims.
A claim for damages for the words spoken clearly forms part of the pleaded claims for assault. The first plaintiff "was screamed at and humiliated" (paragraph 7) and the third and fourth plaintiffs suffered injury in seeing the police assault on their mother. The statement of claim goes on to note, in the paragraph following the claims for wrongful arrest and false imprisonment, the following particulars of that claim: "9. Further and in addition the officers intimidated the Plaintiffs by aggressing [sic] calling the Third and Fourth Plaintiffs terrorists, by aggressively calling the First Plaintiff a bitch and by beating and assaulting them, wearing balaclavas and carrying firearms and weapons and their general conduct in handling and by bullying and frightening them."
In Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265, Wilcox J described a series of alternate claims to defamation (such as injurious falsehood, misleading or deceptive conduct, negligent misstatement and deceit) as "unnecessary clutter". His Honour went on to state: "The causes of action just discussed have served only to clutter the case. It is not clear why they were pleaded. The applicants' significant claims arise out of the operation of the Trade Practices Act (or Fair Trading Act) and the law of defamation. There is a legal issue about the application of the Trade Practices Act and Fair Trading Act, to which I will turn in a moment. But the published material was clearly defamatory. To the extent (if any) that it made untrue imputations against any applicant, it was clearly indefensible; in which case the affected applicant would be entitled to recover damages without resort to claims for breach of contract, deceit, negligent misstatement or injurious falsehood. On the other hand, if the published material said nothing about a particular applicant, or the relevant imputations were true, that applicant's action would fail in any event. Nothing was gained by adding these other causes of action."
In the present case, the pleaded action for defamation overlaps almost entirely with the clearly more substantial claims for assault and battery, wrongful arrest and false imprisonment.

The limited extent of publication

The statement of claim fails to identify the persons to whom the matters complained of were published but, in practical terms, the only persons present were the plaintiffs and the defendants. I have noted below the difficulties about claims for defamation for a publication about one spouse to another.
While I note that publication about one plaintiff to another (Zarth v Williamson [2006] NSWCA 246) and by a defendant to a potential fellow defendant (Trantum v McDowell [2007] NSWCA 138) may still amount to publication to a third party, these publications must be acknowledged to have been made to at best a few persons.
However, I do not consider that such a limited publication would only result in nominal damages. This issue came before the NSW Court of Appeal in very similar circumstances in Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWSC 272, where the plaintiff brought proceedings for defamation and false imprisonment after being stopped by store detectives. One of the store employees accused the plaintiff of stealing and eating frozen prawns. Another customer saw the events happening but did not hear the words spoken. The other employees denied hearing the words spoken. Although there was no evidence of the publication being heard by anyone other than the defendant's employee who spoke the words (or, in fact, any third party), the Court of Appeal refused to disturb the damages award of $50,000 (at [103]). Accordingly, I do not consider that the defendants can establish that any award for defamation for the statements made would be of a nominal nature.

The likelihood of successful defences

Although not strictly speaking a defence, the defendants submitted that the matters complained of, and in particular the statements allegedly made to the first plaintiff, would be likely to be struck out at trial as not being defamatory, on the basis that they were vulgar abuse.

Vulgar abuse and defamatory meaning

The fact that an offensive word appears, or that the publication was made in an angry tone and voice, does not necessarily mean that the publication amounts to a mere abuse. The question is whether or not the matter complained of conveys more than just insulting words. If no defamatory act or condition is capable of being conveyed, then the matter complained of is more likely to amount to mere insult or "vulgar abuse". It is only in those circumstances that the language will be regarded as merely offensive and vituperative and therefore not actionable: Ralston v Fomich (1992) 66 BCLR (2d) 166 at 169 (SC).
In Mundey v Askin [1982] 2 NSWLR 369, the first case in New South Wales to consider "vulgar abuse", the defendant, the Premier, said about the plaintiff, during a long speech about his activities: "But don't under-estimate some of these vermin". The jury found that the whole publication was not defamatory and Mr Mundey appealed. The Court of Appeal upheld the trial judge's directions to the jury on the basis that the trial judge's reference to "vulgar abuse" was in the context of whether or not "vulgar abuse" could damage reputation, which would have the effect of rendering a publication not being defamatory.
The impact of "vulgar abuse" on defamatory meaning was more recently the subject of analysis in Bennette v Cohen (2005) 64 NSWLR 81; Tory v Megna [2007] NSWCA 13 and Echo Publications Pty Ltd v Tucker and Anor; Fast Buck$ v Tucker and Anor [2007] NSWCA 73.
In Bennette v Cohen the defendant gave a speech at a fundraiser to raise funds for a person who had previously been sued for defamation by the plaintiff. The imputations included an imputation that "the plaintiff has done illegal work which severely damaged the environment", which the jury considered was not defamatory of the plaintiff (imputations that the plaintiff was a "thug" and a "bully" were, however, found to be defamatory). In holding that the jury's finding was within the range of conclusions reasonably available, the court noted (at [25]) that in considering whether an imputation was defamatory, it was for the jury to consider the meaning of the words and of the imputations in the context in which they were spoken, namely an address to a meeting. At [46]-[51] Bryson JA analysed the law relating to "vulgar abuse" and concluded (at [51]): "In my opinion it is clear from the passage I have set out from Mundey v Askin that there is not a dichotomy between vulgar abuse (or mere vulgar abuse) on the one hand and defamatory matter on the other, and that it does not follow from establishing that the matter complained of was mere vulgar abuse that it was not defamatory. What is for decision is whether the words spoken bore a meaning that was likely to affect the reputation of the person spoken of. "Vulgar abuse" and "mere vulgar abuse" are not terms of art nor are they capable of high definition or detailed exposition; but in determining the meaning of words used and whether their meaning was defamatory it may be open to consideration whether the terms used and the context in which they were used were such that there was no likelihood of their affecting the reputation of the person spoken of; that no notice would be taken of them. This would not be the right conclusion on all statements which could accurately be described as vulgar abuse or mere vulgar abuse; much vulgar abuse is highly defamatory."
In Tory v Megna, the s 7A trial jury rejected a submission that the "rubbishy nature" of 17 anonymous newsletters, which accused the plaintiff (inter alia) of being "vermin", meant that they were "junk mail", incapable of conveying a defamatory meaning. The Court of Appeal (at [54]) dismissed the appeal on the facts, holding that the newsletters were "a serious attempt to communicate information."
In Echo Publications Pty Ltd v Tucker and Anor; Fast Buck$ v Tucker and Anor a submission that an imputation that the plaintiff was a "bully" was not defamatory was dismissed. Hodgson JA noted at [130]: "Turning to imputation (h), namely that Mr Tucker was a "bully", it seems to me that that is an imputation which, because of its vagueness, might possibly have been considered not likely to cause an ordinary reasonable person to think less of Mr Tucker or to shun or avoid him. It is true that the circumstance that something might be considered "vulgar abuse" does not prevent it from being defamation; but the circumstance that this imputation may be considered mere abuse may permit a jury to conclude that the imputation is one which in the circumstances is not likely to cause ordinary reasonable persons to think badly of Mr Tucker: cf. Mundey v Askin [1982] 2 NSWLR 369 at 371-2; Bennette at [45]-[51]."
It can be seen from the above analysis that different findings as to the defamatory meaning of the words words "bully" and "vermin" have been reached. However, to make anything of this would be to ignore the warning of Bryson JA in Bennette v Cohen at [57], namely that "the nature of defamation is that there are no close analogies" and that it is dangerous, when determining whether imputations are defamatory, to have regard to other cases concerning specific words.
For these reasons, it is necessary to be cautious about whether a word such as "bitch" is capably of conveying a defamatory meaning, as different views have been taken in cases where this word is used, depending on the rest of the context. In Piscioneri v Brisciani [2015] ACTSC 106, Burns J rejected a submission that posts in a forum headed "Bitching and Rants", which included a series of vile insults (of which "stupid bitch" was one of the more anodyne), were mere vulgar abuse, and awarded the plaintiff damages of $82,000. However, in Wood v Branson (1952) 3 SALR 369 the word "bitch" was considered mere vulgar abuse (see also Blaser v Krattiger (1921) 99 Or 392 ("son of a bitch"), Culverhouse v Cooke Centre for Learning and Development Inc (1998) 177 Misc. 2d 365, 675 NYS 2d 776 ("rich bitch"), Travers v Shane (1995) 4 Mass L Rptr 141 ("fat, fucking, disgusting bitch")).
However, the distinguishing feature of this publication is that the word "bitch" is more or less all that was said. There is no context to give it flavour, or meaning, of any kind. In those circumstances, it is hard to see how any imputation, let alone the strained claim that the plaintiff is "an unpleasant woman", could be made out. No imputation can be conveyed by the word "bitch", for the reasons explained by Garibaldi J in Ward v Zelikovsky (1994) 136 NJ 516, 643 A 2d 972 at 982 - 983: "The term 'bitch' is undoubtedly disparaging. But to hold that calling someone a 'bitch' is actionable would require us to imbue the term with a meaning it does not have. Such a holding would, in effect, say that some objective facts exist to justify characterising someone as a bitch. If calling someone a bitch is actionable, defendants must be able to raise the defence of truth. 'Bithc" in its common everyday use is vulgar but non-actionable name-calling that is incapable of objective truth or falsity. A reasonable listener hearing the word 'bitch' would interpret the term to indicate merely that the speaker disliked Mrs Ward [the plaintiff] and is otherwise inarticulate. Although Zelikovsky's [the defendant] manner of expression was very offensive, our slander laws do not redress offensive ideas."
Adopting the same approach to the findings of fact necessary for this application as those taken by McCallum J in Bleyer v Google Inc, I am of the view that the first plaintiff's prospects of success in establishing the first matter complained of conveyed a defamatory imputation are extremely poor.
That would leave only the second matter complained of, namely a statement made by one or more of the defendants' servants or agents to the parents of the third and fourth plaintiffs that their sons were terrorists. Given the limited extent of publication, the circumstances of the arrest and the family relationship, a defence of unlikelihood of harm would have strong prospects of success.

Conclusions concerning proportionality

In Ghosh v NineMSN Pty Ltd at [44], Macfarlan JA stated (although without deciding the issues) that only in rare circumstances would an action be struck out on the basis of proportionality, and that significant grounds, in addition to any history of delay, would be required.
These proceedings have been ready for hearing for some months in relation to the assault, wrongful arrest and false imprisonment claims. The defamation case (which involves only three of the four plaintiffs) is not only extremely weak, in the case of the first plaintiff, but is holding the hearing of the other claims back.
Furthermore, the plaintiffs have a better remedy for the words of the police officers in their remaining claims, in that they are entitled not only to uncapped general damages but also exemplary damages.
Looking at the facts in this case through the proportionality of costs in accordance with s 60 Civil Procedure Act 2005 (NSW), the legal costs incurred in the litigating of the defamation claim are disproportionate to the result, not only for the defendants but also the plaintiffs. Where costs benefits accrue to both parties, costs economies of the kind referred to in Grizonic v Suttor [2008] NSWSC 914 (applying Jameel (Yousef) v Dow Jones & Co Inc [2005] All ER (D) 43 (Feb)) are appropriate. Given the overlap of causes of action and damages, there is no benefit to proceedings with a complex and somewhat artificial defamation claim which is "unnecessary clutter" to the issues for resolution between the parties.
Taking all of the above into account, on the facts of this case, it is actually to the plaintiffs' benefit for them to be able to proceed to hearing now on their remaining claims without the burden of a poorly pleaded and particularised claim for defamation delaying final resolution of the proceedings and adding to the costs in a manner wholly out of proportion to any benefit in terms of damages. Accordingly, the first, third and fourth plaintiff's defamation claim is struck out on principles of proportionality, and pursuant to ss 60 and 61 Civil Procedure Act 2005 (NSW) and r 12.7 UCPR.

Costs

Costs should follow the event. If the defendants wish to bring an application under s 67 Civil Procedure Act 2005 (NSW) for those costs to be assessed prior to the hearing of the claims for assault, wrongful arrest and false imprisonment, they may bring such an application before the List Judge or the Judicial Registrar.

Orders 1. The first, third and fourth plaintiffs' claim for defamation in paragraphs 3-6 and 10-12 is struck out and dismissed pursuant to ss 60 and 61 Civil Procedure Act 2005 (NSW) and r 12.7 Uniform Civil Procedure Rules 2005 (NSW). 2. The first, third and fourth plaintiffs pay the defendants' costs of this application and of the proceedings in relation to the first, third and fourth plaintiffs' defamation claims. 3. All plaintiffs granted leave to file an amended statement of claim in seven days deleting the claims for defamation and making such amendments to the claims for assault, wrongful arrest and false imprisonment as may accordingly be necessary. 4. These proceedings transferred from the Defamation List to the Case Managed List and listed before the Judicial Registrar on 30 November 2015, on which date the parties should be ready to take a hearing date for the plaintiffs' claims for assault, wrongful arrest and false imprisonment.

Amendments 18 November 2015 - Names of the third and fourth plaintiffs suppressed. Paragraph 50 - "employees" to "employee who spoke the words" 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: 18 November 2015

At a glance

Court

Decision date

Before

Source

Judgment (22 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (22)