Josh Massoud v Harbour Radio Pty Limited; Josh Massoud v Fox Sports Australia Pty Limited; Josh Massoud v Australian Radio Network Pty Limited; Josh Massoud v Nine Entertainment Co Holdings Limited; Josh Massoud v Nationwide News Pty Limited

Background to the application

1. The following emerged from the affidavit material, which included a Notice to Admit Facts. On or about 1 May 2018, the plaintiff had prepared an exclusive story relating to an NRL player quitting his club in Queensland and relocating to Sydney. It was intended to be broadcast first on the Channel 7 6pm evening news bulletin as a "breaking story". Details of the "breaking story" were tweeted on twitter accounts operated by the 7 Network prior to the 6pm evening news bulletin. When the plaintiff was apprised of the source of those leaks, he made a phone call to a junior employee stationed at Maroochydore, during which, he said words to the following or substantially the following effect: "If you weren't so young and inexperienced, I'd probably come up there and rip your head off and shit down your throat."
2. Apparently, the fact of this conversation was leaked to other media outlets, who published allegedly defamatory material, giving rise to imputations that the plaintiff threatened to slit a junior colleague's throat, or alternatively, that he threatened a young colleague with violence.
3. The defendants' application is brought informally pursuant to rule 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 ("UCPR"). This follows a practice in the court's defamation list whereby interlocutory applications are brought informally without the need to file and serve Notices of Motion.

The defendants' submissions

1. The defendants seek an order that each of the proceedings be summarily dismissed on the basis that they are an abuse of process, in the sense that the resources that the court and the parties will have to expend to determine the claims are out of all proportion to the interest at stake.
2. In her thorough written outline of submissions, counsel for the defendants set out the well-known principles to be applied in applications for dismissal of proceedings on the basis of an abuse of process. They were not controversial in this application. They include the following: 1. The onus for demonstrating an abuse of process lies with the defendants: Williams v Spautz (1992) 174 CLR 509 at 529. 2. The power to grant the relief is one that should be exercised with caution: Walton v Gardiner (1993) 177 CLR 378. 3. The authorities recognise that the term "abuse of process" is not a term of art and does not have any set meaning (authorities and citations omitted). 4. Relying on PNJ v R (2009) 252 ALR 612; [2009] HCA 6, where the High Court stated that many cases of abuse of process will exhibit at least one of three characteristics, namely: "(a) the invoking of the court's processes for an illegitimate or collateral purpose; (b) the use of the court's procedures would be unjustifiably oppressive to a party, or (c) the use of the court's procedures would bring the administration of justice into disrepute."
3. The defendants relied on Bleyer v Google Inc [2014] 88 NSWLR 670; [2014] NSWSC 897, in which McCallum J recognised that bringing proceedings where the resources of the court, and the parties, that would have to be expended to determine the claim are out of all proportion to the interest at stake, can be properly regarded as a species of abuse of process. At [57] her Honour found that s 60 of the Civil Procedure Act 2005 ("CPA") provides the court with power to dismiss or stay cases in such circumstances.
4. The defendants also noted that at [63], McCallum J indicated that the cases in which a stay would be granted on the basis of disproportionality will be rare. This point was reiterated in Feldman v The Daily Beast Company LLC [2017] NSWSC 831, where her Honour applied the same principles. Bleyer v Google Inc, supra, has since been approved and applied by the Court of Appeal in Farrow v Nationwide News Pty Limited (2017) 95 NSWLR 612, per Basten JA at [5].
5. Counsel for the defendants acknowledged that in determining the application, the court was required to take the plaintiff's case at its highest and should therefore determine the application assuming that the imputations are found to be conveyed and that the defendants fail in their justification and contextual truth defences.
6. It was submitted that it was difficult to see how the plaintiff's reputation has been damaged by the matters complained of, beyond that which he has brought upon himself by his own conduct. The submission was made that if the imputations are not successfully defended, the damages which are likely to be awarded to the plaintiff, if any, would be nominal.
7. The defendants characterise the words used by the plaintiff as threats to commit incredibly violent acts, and further submit that the alleged caveat, i.e. "if you weren't so young and inexperienced", does not in any way diminish the seriousness of the plaintiff's conduct. It was submitted that the threat was clearly designed to intimidate and bully a junior colleague. The fact that it was made was submitted to be devastating to the plaintiff's reputation, and the extent to which any further damage was done by the articles was characterised as "miniscule at best".
8. The defendants also relied on s 38 of the Defamation Act 2005, to the effect that any compensation received by him in relation to the other proceedings will need to be taken into account in mitigation of damages. It was submitted that this may have the consequence of reducing damages in some proceedings to zero, as occurred in Tabbaa v Nine Network Pty Limited (No. 10) [2018] NSWSC 468.
9. Against that, it was submitted that the costs and court resources that would have to be expended to determine the issues in this multiple set of proceedings will be significant. They were estimated to be by Ms Saunders $100,000 to $300,000, depending on whether external solicitors were retained on behalf of Nationwide News Pty Limited, together with counsels' fees of between $35,000 to $70,000, not including preparation time.
10. In her oral submissions, counsel conceded that the application had to be determined on the assumptions that the imputations alleged were made out, and that the publication was via mass media over a broad circulation to the public at large. It was also to be assumed that the truth defence and contextual truth defence relied on by the defendants failed.
11. The court would take into account the whole content of the telephone call, as set out below, together with the fact that the plaintiff's tone during the conversation was admitted to be "exacerbated" and that the recipient of the phone call was "shaken". Further, that the plaintiff accepted that he did the wrong thing and that the remark was regretful. The court would also have regard to the fact that the plaintiff had acknowledged his "appalling behaviour in the office" and anger during his previous employment with Nationwide News Pty Limited.
12. It was submitted that the court was entitled to take into account the true facts on mitigation of damages, referring to Fairfax Pty Limited v Kermode (2011) 81 NSWLR 157, per McColl JA at [86].
13. It was submitted here that the various imputations alleged substantially the same thing with some differences. The "sting" was that the plaintiff made a violent threat to a young colleague.
14. Counsel for the defendants characterised the plaintiff's conduct as egregious. The fact that the recipient of the telephone call was situated over 1000 kilometres away meant that the caveat was meaningless. The plaintiff's words were intended to intimidate and bully, and it was clear that the threat was physiologically impossible to be carried out. It was submitted that the effect of the words used would reduce the plaintiff's reputation so low that there was no room for further damage.
15. The defendant's also relied on Farrow v Nationwide News Pty Limited, supra, per Basten JA at [4] and [5]. There, his Honour had made clear that in a defamation case, the element of vindication of reputation, which may be achieved by a favourable judgment, is not to be disregarded.
16. Counsel also referred to Feldman v The Daily Beast Company LLC, supra, per McCallum J at [57], in submitting that s 38 of the Defamation Act was relevant here, in that the defendant in the matter of Massoud v The Misfits Media Company Pty Limited, had not joined in the application. Further, any damages or compensation received by the plaintiff in other proceedings will need to be taken into account, which may have the consequence of reducing damages to zero, as occurred in Tabbaa v Nine Network Pty Limited, supra.

The plaintiff's submissions

1. The plaintiff also relied on a careful and thorough written outline of submissions prepared by his counsel. She set out a summary of the publications upon which the proceedings were based, and did not cavil with the defendants' identification of the applicable principles to be applied. It was submitted that the court would not be satisfied that the imputations are substantially true as contended by the defendants. It was submitted that "the creative publications by the defendants are a transparent exploitation and reworking with no basis in fact, for the purpose of news".
2. The plaintiff further submitted, based on his answer to interrogatories, that the prefatory words, "If you weren't so young, I'd come up there", amounted to a clear disclaimer of any intent to do harm, therefore there was no threat. Further, the colourful language used was submitted to have origins in the British Royal Navy and was widely known to have been used in a number of films to different effect. It was submitted that a literal interpretation could not be given to the words as a threat to slit someone's throat, thus, the defence of truth would fail.
3. It was submitted that, by the application, the defendants were attempting to impeach the reputation of the plaintiff, however, "bad reputation" was irrelevant as a factor to be taken into account in determining the defendants' present applications.
4. The plaintiff submitted that the publications by the defendants were plainly defamatory and serious, and may lead to a very substantial award of damages because of the wide dissemination of the material. It was submitted that Farrow v Nationwide News Pty Limited, supra, had no application here.
5. It was submitted further, that s 38 of the Defamation Act was not a matter to be considered on a summary dismissal application, but rather, had work to do at the conclusion of any trial. Further, the issue of exemplary damages was to be determined. It was submitted that this was a case where not only could monetary damages be significant, but also the vindication of the plaintiff's reputation could have a significant impact on his future livelihood.
6. In her oral submissions, counsel for the plaintiff rehearsed the written submissions outlined above. Counsel distinguished McCallum J's comments in Bleyer, supra, at [57]. It was submitted here that the material was disseminated over six media platforms and the imputations were of a serious nature, which go to the circumstances of the plaintiff's earning capacity. Further, they were repeated over an extended period between May 2018 and February 2019.
7. Counsel submitted that the court would take into account the context, nature of and environment in which the disputed conversation took place. This was evidence which could not be ignored by either a judge or jury at trial. To characterise what was said as a threat was submitted to go a long way past what was said. The conversation, when looked at as a whole, may be accurately described as graphic and vulgar, but it may be characterised as a chastisement in which the young person acknowledged his mistake and the plaintiff's advice. Further, the context of "the sector in which the words were spoken is important". The material published was done so by way of a leak of confidential material from an employment situation which had no foundation in fact.
8. In submissions in reply, counsel for the defendants rehearsed her submissions in respect of s 38 of the Defamation Act, and in particular s 38(c) and (d), and further submitted that the fact that the conversation arose by way of conduct in the workplace, was a matter which would not be given much weight at any hearing.

Determination

1. Part 13 r 13.4 of the UCPR provides as follows: "13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceeding generally, or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under sub-rule (1)."
2. The principles to be applied on the defendants' application are uncontroversial between the parties and are set out above. In Bleyer v Google Inc, supra, McCallum J said as follows: "57 Once it is recognised that proportionality between the resources required to determine a claim and the interest at stake is relevant to the exercise of the court's procedural powers, it is a small and logical step to conclude that there will cases in which the disproportion is so vast as to warrant the stay or dismissal of the proceedings. The converse proposition, that the court must always determine every claim on the merits, is expressly rejected in r 13.4 of the UPCR … 62 I am satisfied that the court has power, in an appropriate case, to stay or dismiss an action on the grounds that the resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake. In my view, such disproportionality can properly be regarded as a species of abuse of process. 63 It should go without saying that the cases in which a stay would be granted on the basis of disproportionality will be rare. The primary function of the court is to determine cases properly brought before it according to law and the merits of the case. Further, the value of the interest at stake will, at least in some instances, have to be assessed having regard to broader considerations than the sum of money involved. That is an important consideration in the context of defamation, where vindication of reputation is not wholly measured or achieved in financial terms, even though the remedy must be given in the form of monetary compensation."
3. Those principles were applied in Farrow v Nationwide News Pty Limited, supra, by the Court of Appeal. Basten JA said in the context of costs to the parties of litigation being proportionate to the importance and complexity of the subject matter in dispute: "5 That is not to say that one has regard only to a comparison of the likely financial benefit to the applicant and the likely costs to the parties on both sides. In a defamation case, as in other proceedings designed to assert or defend the human rights of individuals, the element of vindication of reputation which may be achieved by a favourable judgment is not to be disregarded. However, where the applicant cannot demonstrate a prima facie case of an entitlement to significant damages, that may be because any damage to the reputation which may be made good is itself trivial."
4. As a starting point here, it is necessary to set out the whole of the conversation that took place between the plaintiff and his colleague, which, having been leaked, was subject to the various publications. That conversation set out in interrogatory No. 3 of the plaintiff as follows: "3 Interrogatory: If the preceding interrogatory is in the affirmative, please state what you said to that colleague. Answer: To the best of my recollection the conversation with that colleague was as follows (to the effect of): COLLEAGUE: Hello ME: Hi Jack? It's Josh Massoud from Seven News Sydney. COLLEAGUE: Oh hi. ME: Mate I'm calling to find out what's going on … how old are you? COLLEAGUE: 18. ME: Well that probably explains why this has happened. COLLEAGUE: Yeah well, I just thought it would be ok to put the story on Twitter because it wasn't marked as 'Exclusive' or 'First on 7'. ME: Go on then explain to me how it happened. COLLEAGUE: I went into the rundowns, I saw it on the rundowns for Brisbane, Cairns and Townsville and nowhere did it say it was a FO7 story. That's why I thought it would be ok to tweet … ME: So that's the process it is? You just assume its ok without asking anyone? COLLEAGUE: I know, I know it was wrong, it was a mistake. ME: Jack let me tell you what it takes to get a story like this, to get people to trust you, to give up information like this before the rest of the world finds out. It takes years and years of relationship building … Phone calls, coffees, meetings, all to build a relationship that will deliver exactly this type of the story - and you've gone and stolen it. You've completely ruined my day. COLLEAGUE: I know, I know, I'm sorry. It's happened because I'm young and inexperienced. ME: That's right. And if you weren't so young and inexperienced I'd probably come up there and rip your head off and shit down your throat. But I'm not because you're young and inexperienced … and at least you've apologised and admitted your mistake. That's very rare - especially at this network. Not many people can do that, especially someone so young. COLLEAGUE: Yeah, I'm really sorry, I shouldn't have don't it. I stuffed up. ME: If you want a future in this game let me give you a tip - I've taught journalism in the past, so I know a bit about what young journos are like. Keep your head down, listen and learn. Be a sponge. Don't try and be a superstar. Don't go for the glory like you have here, you might get away with it two or three times, but eventually there will be a massive fuck up like this. COLLEAGUE: I agree with that. It's not worth it in the end. ME: No, it's not. Again, I appreciate the fact that you've apologised and manned up to your mistake. COLLEAGUE: Okay. ME: Goodbye COLLEAGUE: Goodbye"
5. Taking the plaintiff's case at its highest, the trial judge (or jury hearing the matter and determining whether the imputations are made out) would have regard to the context in which the conversation took place over the telephone, and its content. Ultimately, the characterisation of the words used is a matter to be determined at trial, and it is clearly arguable that the publications are defamatory.
6. On this application, the defendants' submit that any damages to be awarded will necessarily be nominal. The plaintiff, on the other hand, argues that damages are likely to be substantial, and may include either aggravated or exemplary damages. On the basis of the evidence before me, I am not persuaded that the plaintiff's damages, in the event that he is successful, will necessarily be nominal. In any event, as outlined to counsel in argument, many cases brought within the defamation jurisdiction of this court may result in modest awards of damages, or at least awards which are not considered large. The fact that there are five separate proceedings in which the application is brought, together with one set of proceedings where the defendant has not joined the application, does not necessarily mean that the eventual net outcome of the litigation to the plaintiff, in the event that he is successful, will be an award for nominal damages.
7. Further, as the defendants appear to have common representation in all five matters, the costs of the proceedings may be shared across the five separate proceedings.
8. Section 38 of the Defamation Act 2005 provides as follows: "38 Factors in mitigation of damages (1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that: (a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter, or (b) the defendant has published a correction of the defamatory matter, or (c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or (d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or (e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter."
9. It is a matter to be determined at trial as to whether the matters published of matters complained of in each set of proceedings have the same meaning or effect as any defamatory matter determined in any one proceedings. The various imputations, and their pleadings in the proceedings brought against the five defendants, are set out in a summary of imputations annexed to the submissions of learned counsel for the plaintiff. That document demonstrates that not all the imputations are common to all sets of proceedings. Thus, the application of s 38 to any judgment or judgments obtained by the plaintiff in the proceedings would be a matter to be determined in this case following determination of the issues at trial. In Feldman v Daily Beast Company LLC, supra, McCallum J noted that the multiplicity of causes of action was something that arose most commonly in the Supreme Court Defamation List (see [57]).
10. It is clear that the power upon which the defendants rely is to be used sparingly and only in the most clear cases. It is also clear that in defamation proceedings the element of vindication of reputation, which may be achieved by a favourable judgment, is not to be disregarded, as per Basten JA in Farrow v Nationwide News Pty Limited, supra, at [5].
11. Notwithstanding the unchallenged evidence upon which the defendants rely as to the estimate of costs to be incurred by the defendants in defending the plaintiff's allegations, I am not persuaded either that the plaintiff's damages will be nominal, either by verdict or by application of s 38 of the Defamation Act 2005, nor am I persuaded that the costs of the proceedings are out of all proportion to the interest at stake. As submitted by the plaintiff, the matters complained of were published over a lengthy period of time to a very broad audience over six different platforms.
12. This court has jurisdiction to determine defamation cases, which by virtue of the limits of the jurisdiction, are generally cases where, in the event of success, plaintiffs are awarded damages which may be either modest, or at least not substantial. As McCallum J outlined in Bleyer v Google Inc, supra, at [63]: "The primary function of the court is to determine causes properly brought before it according to law and the merits of the case. Further, the value of the interest at stake will … have to be assessed having regard to broader considerations than the sum of money involved. That is an important consideration in the context of defamation, where vindication of reputation is not wholly measured in financial terms, even though the remedy must be given in the form of monetary compensation."
13. I am not satisfied that any of the three characteristics of abuse of process identified by the High Court in PNJ v R, supra, and set out in [10(iv)] above has been established. Nor am I satisfied that there is disproportionality established here so as to amount to an abuse of process.
14. For those reasons, I am not satisfied that the defendants have made out a case for dismissal of the five proceedings pursuant to r 13.4 of the UCPR. I therefore intend to dismiss the defendants' applications with costs.

Orders

1. I make the following orders: 1. The application brought by the defendants for dismissal of the plaintiff's proceedings, in the five matters, pursuant to UCPR r 13.4, is dismissed. 2. The defendants are to pay the plaintiff's costs of the applications.

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: 09 August 2019