Haddad v Nationwide News Pty Ltd Cheikho v Nationwide News Pty Ltd

Judgment 1HER HONOUR: Before the Court are two sets of proceedings for defamation. Although represented by different solicitors, the plaintiffs have briefed the same counsel and to some extent sue on common matter. Accordingly, it was convenient to hear the defendant's objections to the form of the pleadings together. This is a joint judgment dealing with the defendant's objections in both sets of proceedings. 2It is convenient first to deal with the proceedings brought by four gentlemen, Mr Haddad, Mr Dabliz, Mr El-Haouli and Mr Sari in respect of two articles published in The Daily Telegraph. The defendants raise two kinds of objections to the form of the pleadings. First, there are objections to the imputations. Secondly, there is an objection to what has been referred to in submissions as the composite pleading. The issue as to the composite pleading is also raised in the second set of proceedings commenced by Mr Hamza Cheikho. I will return to that issue, since it arises in respect of both sets of proceedings. 3The first matter complained of by the four plaintiffs in the Haddad proceedings is an article published in The Daily Telegraph on 18 September 2012. The article was published under the headline "Faces of Rage" and included photographs of a number of men, including each of the plaintiffs. The defendant does not object to the single imputation pleaded as arising from that publication, but it assumes some relevance for the purpose of the other arguments put on behalf of the defendant. 4The second matter complained of is an article featuring the same collection of photographs. The article was published just over a week after the first article. It appeared under the headline "Angry Men Unmasked", with a banner across the top of the page "Muslim Unrest". The first objection taken by the defendant to the pleading in respect of that publication is to imputation (c), "that [each plaintiff] had spearheaded an attack on the fundamental principles of a secular democracy". 5Ms Barnett, who appeared for the defendant, submitted that the imputation was liable to be struck out as being bad in form in that it fails to distil any clear defamatory act or condition attributed to the plaintiffs and is vague and meaningless. She noted that the imputation is drawn, in terms, from the matter complained of. 6Ms Barnett relied upon the principles stated by Hunt AJA in Harvey v John Fairfax Publications Pty Limited [2005] NSWCA 255 at [121] concerning the importance, in pleading a cause of action in defamation, of identifying or distilling the act or condition which the plaintiff alleges is attributed to him or her by the matter complained of, rather than simply lifting the words of the matter complained of. In that decision, His Honour cited with approval the remarks of Samuels JA (with whom Moffitt P and Reynolds JA agreed) in Feros v West Sydney Radio Pty Limited (Court of Appeal, 22 June 1982, unreported), as follows (at 5): It is not always sufficient that an imputation should repeat the language of the matter published. Sometimes that will be enough, but more often an imputation must distil rather than recapitulate. 7Samuels JA went on to say (at 6): It is essential that imputations should be clear and precise. This standard will often not be met merely by adopting the language of the matter published. It must be borne in mind that the purpose of an imputation is to specify the meaning which the language of the matter, which may be imprecise or rambling and prolix, is alleged to convey. 8Ms Barnett also reminded me that I applied the same reasoning in Waller v Nationwide News Pty Ltd [2011] NSWSC 611 at [21]. 9That jurisprudence is easy to record, but more difficult in the application. There is always room for argument as to the extent to which a clear defamatory sting is captured in words lifted from the matter complained of, or whether the plaintiff must go further in distilling the sense in which those words would be understood by the ordinary reasonable reader. The importance of the requirement for a clear specification of the act or condition allegedly imputed to the plaintiff in a defamation action has been considered in many authorities, perhaps most usefully in the remarks of the Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 in the following passage at pages 136-137: In Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 91, Griffith CJ observed that "impute" is an ordinary English word, and is properly used with reference to any act or condition asserted of or attributed to a person. His Honour went on to say that in the section of the Criminal Code Act 1899 (Qld) which he was considering the word "imputation" meant the matter (act or condition) imputed, and that if the act or condition imputed were such that the plaintiff's reputation was likely to be injured by it, or the plaintiff was likely to be injured in his profession or trade, the law called it defamatory. In Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1, a case concerning the Defamation Act 1958, Gibbs J said (at 10): "... To make an imputation concerning a person is to attribute some act or condition to him, or in other words, simply to make a statement concerning him." The requirement that a plaintiff must "specify" the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. 10As may be seen from those authorities, the task is to determine whether the meaning that has been distilled is sufficiently clear, both for the purpose of pre-trial processes and for the purposes of the conduct of the trial and to put the defendant and the tribunal of fact on notice as to the particular act or condition the plaintiff alleges is attributed to him. However, as the authorities also recognise, that is a task of greater or lesser difficulty, depending on the language of the matter complained of itself. 11An interesting illustration of the difficulty of the task and the flexibility given to the pleader according to the terms of the matter complained of is the decision of Simpson J in Griffith v Australian Broadcasting Corporation [2002] NSWSC 86. In that case, her Honour allowed an imputation to go to the jury "that the plaintiff is so deluded that he claims to be greater than Jesus Christ". After considering an argument which drew a distinction between the use of the phrase as a figure of speech and the use of the phrase as one intended to be taken seriously and literally (raising the spectre of an un-stated false or unprovable premise, that there is literally no greater figure than Jesus Christ) Simpson J said at 35: On reflection, however, I do not think the distinction drawn by Mr Walker achieves what he seeks. It is to be remembered that all that is presently in issue is whether the imputation is sufficiently clear so that, if it goes to the jury, the jury will understand its meaning - its only meaning - in such a way as to avoid confusion. I am satisfied that the language is quite plain to an ordinary reasonable reader and to a jury. I will therefore not strike out imputation 11(a) on this ground. 12Her Honour's consideration of that imputation at [33] to [35] informs a consideration of the issue raised in this case. As already noted, the imputation here is drawn in terms from the matter complained of, where it is stated at paragraph 24: It was, for those few ugly extremists who spearheaded it, an assault on our whole society. It was an attack on the fundamental principles of a secular democracy in which freedom of expression is a cherished right. 13In my view the matter complained of itself does, in this instance, distil the precise act or condition attributed to those who spearheaded the riots the subject of the article. Whether or not the article says that each plaintiff was one of those persons is of course a matter properly to be left to the jury, but the meaning of the contention or attribution to each such person that he spearheaded an attack which the article describes as one levelled against "fundamental principles of a secular democracy" is, in my view, one of sufficient clarity to allow that imputation to go to the jury. 14The next imputation objected to is imputation (e), "that [each plaintiff] is a Muslim extremist who incites other Muslims to violence". Ms Barnett valiantly contended that the matter complained of is incapable of conveying that imputation. I disagree. The whole tenor of the article conveys a sense of the shocked response of a civilised western democracy to what is plainly characterised as unacceptable unrest on the part of Muslims. 15The very banner at the top of the article introduces that theme in the words "Muslim Unrest". The larger headline "Angry Men Unmasked", coupled with the collection of photographs of men who, for want of a better way of describing what is depicted, are largely of Middle Eastern appearance with angry expressions on their faces, is in my view such as to incite a level of relatively loose thinking on the part of the ordinary reasonable reader. Ms Barnett focused on the fact that the article explains that some but not all of the men depicted in the photographs have been arrested and charged, carrying the implication that the others had no involvement in the unrest reported. I disagree. I think the ordinary reasonable reader could reasonably draw from the matter complained of the meaning that each of the men depicted in the photographs was one of those involved in what is undoubtedly depicted as an angry Muslim mob. Imputation (e) will go to the jury. 16The next objection was to imputation (f), "that [each plaintiff] took up arms against the police". Mr Molomby, who appears for the plaintiffs, submitted that that imputation arises from the whole of the matter complained of but with particular focus on paragraphs 6 and 9, where it is reported that, following investigation by police, particular individuals had been arrested and charged with a variety of offences, including offences involving the use of weapons. Ms Barnett again submitted that the tenor of the article is that those who have already been charged were the ones responsible for any use of weapons and that, by inference, those not specifically named as having been charged were not. 17Once again, however, I think the overall tenor of the article is such that, applying the test of reasonableness, as I am required to do in accordance with the decision of the High Court in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 at [9] to [11], it must be regarded as reasonably open to the jury to accept that the article conveys the meaning that each of the male plaintiffs was among the group that took up arms against the police. Imputation (f) will go to the jury. 18I turn to the imputations relied upon by Mr Cheikho in his separate action. Mr Cheikho sues on four matters complained of. As with the Haddad proceedings, there is no objection by the defendant to the imputation relied upon as having been conveyed by the first matter complained of, which is the same article. 19The second matter complained of by Mr Cheikho is an article published on 19 September 2012 under the headline "Rising fear, Aussie fury could cause culture clash". The first objection is that imputations (b) and (d) alleged to arise from that article do not differ in substance. Imputation (b) is "that the plaintiff took part in a riot". Imputation (d) is that "the plaintiff is a violent protester". Mr Molomby submitted that a riot and a protest are different things. He contended that a riot has no element of protest, whereas a violent protest does not have to be a riot, since a person can protest on his own. 20The question whether the imputations differ in substance must, however, be considered by reference to the meaning that would be attributed to each individual imputation when considered in the context of the passages from which it is alleged to arise: see Griffith at [67]. 21In my view, having regard to the content of the matter complained of, which is plainly concerned with an event which could equally be described as a riot or a violent protest, imputations (b) and (d) do not differ in substance. The plaintiff should be required to elect as between those two imputations. 22The next objection is to imputation (e), which is "that the plaintiff was linked by police to a home grown Islamic terror cell". The objection to that imputation was on the grounds of both form and capacity. Most of the argument focused on the capacity point and I was, during argument, minded to think that the imputation was capable of arising. Upon further reflection, however, I think there is a difficulty with the form of the imputation. This is again a case in which the language of the imputation is lifted from the language of the matter complained of. 23The matter complained of identifies a series of alleged links. Paragraph 8 links the Ahlus Sunnah Wal Jamaah (ASWJ) group with the Bukhari House bookshop and prayer hall in Auburn. Paragraph 9 states that some of the people involved in the riot have been linked by police to the home grown Islamic terror cell that amassed weapons and talked of "blowing up" the New South Wales Parliament and Lucas Heights nuclear reactor. Paragraph 10 links Sheikh Feiz with the protests and states that they were excluded from a "historic meeting" following the protests of 25 Muslim organisations. 24There is a level of vagueness in that collection of allegations and alleged links with which the plaintiff must grapple. I have had regard to the difficulty of that task in considering the form of the imputation. The difficulty is that I simply do not understand what the imputation means. I think it is an imputation which is liable to cause confusion, both in the pre-trial processes and at the trial and, accordingly, that it is liable to be struck out as being embarrassing on that basis. 25The next objection is to imputation (g) alleged to arise from the third matter complained of, which is an article published on 22 September 2012 under the heading "Dark Heart of Hatred". The imputation is that the plaintiff approves of acts done in preparation for terrorism. It is alleged to arise from the following parts of the matter complained of. First, it is reported at paragraph 13 that the plaintiff was talking about the protest with ASWJ members on social media. The words he is alleged to have written are set out in the matter complained of as follows: Thers a protest in the city tomorrow, 1pm at town hall. be there to support MOHAMMAD IF YOU TRULY BELIEVE. 26It is then reported that he was one of the protesters whose photograph was featured on the front page of the Daily Telegraph in the first matter complained of, to which I have already referred. 27At paragraph 15 it is reported that he has told people that two of the so-called "Terror 9" who are described as "the fanatics who stock-piled explosive chemicals, firearms, and thousands of rounds of ammunition in preparation for unleashing terror on Australia in 2004 and 2005" are his relatives. 28There is a further reference at paragraph 30 to the fact that another rioter, who wore one of the "Sixth Pillar T-shirts", was the nephew of one of the men serving a lengthy term of imprisonment with the plaintiff's relatives for the same terrorist offences. 29Mr Molomby thus submitted that the fact that the article reports the plaintiff as having told people of his connection with the Terror 9 is capable of conveying the meaning that he approves of the acts of which some of those men were convicted. 30I must say I have had some difficulty with this imputation because I think the imputation is barely there. But having gone back to the discussion of the High Court in Favell v Queensland Newspapers, that decision reminds judges that where an article points towards inferences which on a test of reasonableness could reasonably convey a meaning about a person, it is a matter which should be left to the jury. The overall tenure of this article is one likely to incite in the mind of even the reasonable reader apprehensions about the conduct of Muslims in Australia. I think it would be a step too far to say that this imputation is incapable of arising from the matter complained of. In particular, I accept that the fact that Mr Cheikho is reported as having himself disclosed his connection with the Terror 9 is capable of suggesting that he condones or approves of the acts for which some of them were convicted. 31The next objection arising from the same matter complained of is that imputations (f) and (i) do not differ in substance. Imputation (f) is that the plaintiff helped organise a riot. Imputation (i) is that he is a rioter. Mr Molomby submitted that there is a difference because a person can help to organise a riot but not attend the riot himself. I think that is a distinction without a difference when one has regard to the content of the matter complained of. One or other of those imputations captures the sting attributed or imputed to Mr Cheikho by the article, but I think the plaintiff should have to elect. 32The remaining objections in respect of Mr Cheikho's claim are the same as those with which I have dealt in the Haddad proceedings and will be governed by my rulings in those proceedings. 33It remains to consider what I have referred to as the composite pleading claim. In each case more than one article is sued on. The Haddad plaintiffs sue on two articles, Mr Cheikho sues on four. The device adopted by the pleader has been, in what may be described as a mathematical exercise, to allege that "the imputations pleaded above are also conveyed by the matters complained of read together as follows". There is then a recitation of every mathematical combination of the various ways in which the four articles can be read. In the case of the Haddad plaintiffs, it is alleged that imputations are conveyed by the two articles read together. 34Mr Molomby sought to sustain that pleading by reference to the principles stated in the decision of Hunt J in Burrows v Knightley (1987) 10 NSWLR 651 at 657. That was a case in which the newspaper serialised the publication of a book, that is to say, what the newspaper did was to publish four separate segments of the book, the book itself plainly being a single publication. Its serialisation in the newspaper was accepted as also capable of being pleaded as a single publication, notwithstanding the process of its publication in instalments over four days. Mr Molomby submitted that, on the strength of that principle, the plaintiffs in the Haddad proceedings are entitled to claim damages in respect of each possible mathematical combination of the reading of the various articles. 35The relevant principle in Burrows v Knightley was stated by Hunt J at 657 as follows: Where the matter of which a plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent, on the face of the matter complained of itself, either an intention on the part of the defendant that it be read together or direct references internally one to the other so that the reader may reasonably be expected to read it together, it is acceptable practice to plead all of the material in the one paragraph of the statement of claim and to identify the imputations said to have been conveyed by the material as a whole. It is not necessary to plead each part separately and to add 'true' innuendoes where material published on one occasion is relied upon to give a statement published on another occasion a meaning beyond that which it conveys when considered in isolation. 36In the present case, in seeking to invoke that principle, the plaintiffs have made no attempt whatsoever to articulate the basis on which it is contended that there was any appearance or intention that the articles should be read together. It is one thing to say that four chapters in a book published serially over four days are plainly intended or apparently likely to be read together. It is another to say, once an issue attracts the attention of the public, that every article published on the subject of that event is intended to be read effectively as a serialised account of the event. No attempt is made in the pleading to say why that should follow in the present case. No attempt is made by reference to particular parts of the matter complained of to draw attention to a part of one inviting the reading of part of another, with one exception, which is that a number of the articles refer back to the original collection of "Faces of Rage" published in the first matter complained of. I do not think that in itself is enough to warrant the Burrows v Knightley form of pleading. 37In my view, the pleading of the composite publication in each claim is embarrassing and liable to cause confusion as to the way in which the trial will be run and should be struck out on that basis.