Solicitors:
Australian Broadcasting Corporation (first defendant and second respondent to notice of motion)
L Norman, Banki Haddock Fiori (third defendant)
J Parsons, Johnson Winter & Slattery (eighth defendant)
File Number(s): 2015/219421
[2]
Judgment
HER HONOUR: These are proceedings for defamation commenced by Mr Tosson Mahmoud by statement of claim filed 24 July 2015.
The plaintiff represents himself. With no disrespect to him, the manner in which the claim is pleaded reflects his lack of legal training. There are 11 defendants to the proceedings. Three are represented today. Those parties have raised objections to the form of the statement of claim. Mr Mahmoud has acknowledged that it requires amendment and has sought a period of time within which that might occur.
On 9 November last year, Mr Mahmoud wrote to my Associate requesting the vacation of a listing date for the determination of the defendants' objections to the pleading and seeking what he then termed a "temporary stay" of the proceedings, for reasons specified in that letter. Mr Mahmoud has since clarified that he does not seek a temporary stay of the proceedings so much as a relatively lengthy period within which to attend to the amendment. It will be necessary to return to that issue.
In the meantime, notwithstanding the fact that the form of the pleadings is not yet resolved, Mr Mahmoud has filed and served a notice of motion seeking injunctions to restrain what I apprehend to be the same publication as the primary publication sued on in the proceedings. This judgment determines that application.
There are 29 defendants to the motion. I have not checked whether they include the 11 defendants to the statement of claim. In any event, each of the three defendants represented today is a defendant to the motion. One is the Australian Broadcasting Corporation, represented by Ms Barnett of counsel. Ms Barnett also represents a journalist, Ms Claire Aird, who is a defendant to the motion but not to the statement of claim.
The underlying defamation action stems from an article written by Ms Aird concerning vexatious litigation proceedings brought against Mr Mahmoud. The proceedings were commenced by the Attorney-General for the State of New South Wales on 3 September 2013.
On 18 July 2014, Hoeben CJ at CL heard an application brought by Mr Mahmoud to have those proceedings dismissed or alternatively adjourned. His Honour reserved his decision for a short period and, on 24 July 2014, published his judgment dismissing the application: see Attorney-General in and for the State of New South Wales v Mahmoud [2014] NSWSC 970.
The article which might be termed the principal matter complained of in these proceedings was published that day. While it is not possible to be certain (having regard to the form of the pleadings and the material attached to Mr Mahmoud's notice of motion), it appears what occurred was that Ms Aird's article was initially published under a headline which incorrectly stated that Mr Mahmoud had been declared a vexatious litigant by the New South Wales Government: see page 9 of the attachments to the notice of motion filed 31 January 2017.
If that is the headline under which the article was initially published, it was incorrect as at 24 July 2014 in two respects. First, Mr Mahmoud had not at that point been declared a vexatious litigant. Secondly, orders under the Vexatious Proceedings Act 2008 (NSW) are made not by the Government but by the Court. What had occurred at that stage was that the Attorney-General had commenced proceedings to have orders under the Vexatious Proceedings Act made against Mr Mahmoud but those proceedings had not been determined.
It appears from the material provided by Mr Mahmoud in support of the present application that the incorrect headline to the article was corrected no later than 25 July 2014, when the article was updated so as to appear under the headline, "Serial litigant Tosson Mahmoud fights New South Wales Government move to block him from the Courts".
The statement of claim reveals, at least, that Mr Mahmoud seeks to sue on the article as it appeared on 24 July 2014 but also on the article as it appeared when the headline was corrected and on every republication of that material that may be found anywhere on the internet, hence the large number of defendants to the proceedings.
The defendants' contentions as to the form of the statement of claim include the contention that the plaintiff has not specified the defamatory imputations sued on, as required under r.14.30(2)(a) of the Uniform Civil Procedure Rules. In argument, Mr Mahmoud confirmed, as may be gleaned from a careful reading of the pleading, that he complains of three allegedly defamatory imputations in particular: first, the description of him as a "serial litigant"; secondly, a statement in the article that he has lost count of the number of times he has been to court; and thirdly the suggestion that he had as at 24 July 2014 been declared a vexatious litigant.
As to the first two of those imputations, Mr Mahmoud submitted that, according to the law of defamation, it does not matter whether a defamatory statement is true. It is not necessary in this judgment to address the correctness of that submission, or the wisdom of commencing proceedings on that premise.
As to the third imputation (that Mr Mahmoud had been declared vexatious as at 24 July 2014), that was wrong. However, an order was in fact made under the Vexatious Proceedings Act at a later point prohibiting Mr Mahmoud from instituting proceedings in New South Wales other than with leave of an appropriate Court under that Act. That order was made by Rothman J on 24 September 2015: see Attorney-General for the State of New South Wales v Mahmoud [2015] NSWSC 899. His Honour also made an order on that date that any legal proceedings instituted by Mr Mahmoud before the date of the orders were stayed. The effect of that order was to stay these proceedings, which were commenced before that date. However, that order was subsequently vacated by consent, as recorded in a short judgment of Registrar Riznyczok dated 13 April 2016.
Mr Mahmoud has appealed against the orders of Rothman J. The appeal has been heard but the decision of the Court of Appeal remains reserved.
The likely fate of the vacated order is unclear. Ms Barnett submitted that, in all likelihood, if the appeal is unsuccessful, that order will be reinstated, whereas Mr Mahmoud contends that the order has been vacated for all time and is no longer of any concern to him as a potential impediment to these proceedings. It is not necessary today to consider the likely merit of either contention. It is perhaps enough for present purposes to observe that, as I understood his position, Mr Mahmoud appears to accept the wisdom of staying his hand in amending the statement of claim in these proceedings pending the publication of the Court of Appeal's reserved decision.
Against that background, the motion seeking injunctive relief was filed on 31 January 2017. As already recorded, the notice of motion lists 29 defendants of whom four are represented today, two by Ms Barnett (being the ABC and its journalist, Ms Aird). Also represented today is Fairfax Media Publications Pty Ltd, the entity which publishes the printed edition of the Sydney Morning Herald. That party is represented by Ms Norman. Separately, Yahoo!7 Pty Ltd is represented by Mr Parsons.
It is convenient first to deal with the position of the ABC which, from the history I have recited, may be seen as a principal protagonist in the proceedings. Ms Barnett submitted that no application for injunctive relief should be considered at this stage, pending the determination of the defendants' objections to the statement of claim. However, upon hearing further from Mr Mahmoud and with his clarification of the uncertainty regarding the defamatory imputations relied upon by him, Ms Barnett indicated that she was ready to meet the application today.
The principal submission put by Ms Barnett in opposition to the relief sought by Mr Mahmoud was that, if there was error in the publication on 24 July 2014 of an article asserting that Mr Mahmoud had been declared vexatious, it was quickly corrected by the article as it appeared on 25 July 2014, which accurately stated the position. I should record that those submissions were made without admissions and in circumstances where Ms Barnett was doing her best to understand the way in which the case is put against her client without resiling from her objections to the form of the pleading.
In any event, on that basis, Ms Barnett submitted that there is now nothing to restrain, the incorrect headline having been corrected within a day of its original publication. It is important in this context to bear in mind the principles relating to the granting of injunctions to restrain an alleged defamatory publication. The law is relatively well settled in this field. In particular, it is recognised that, in exercising the discretionary power to grant an interlocutory injunction in the special circumstances of a defamation case, the court must take proper account of the significance of the value of free speech: Australian Broadcasting Corporation v O'Neill [2006] HCA 46.
Further, in order to establish an entitlement to an interlocutory injunction, Mr Mahmoud would have to demonstrate a viable claim for more than nominal damages. The difficulty in the present case is that, as already recorded, although Mr Mahmoud was not a person who had been declared vexatious as at 24 July 2014, he has subsequently had orders under the relevant legislation made against him.
Mr Mahmoud submits that the orders of Rothman J were interlocutory and that no final order has been made, since the Court of Appeal remains reserved. That is not a legally accurate characterisation of the position. On the contrary, the orders of Rothman J must be taken to stand unless and until set aside by any different order as a result of the determination of the appeal.
In any event, the question of the temporal truth of an imputation that Mr Mahmoud is a vexatious litigant is plainly an important one in the present application. In my view there is force in Ms Barnett's submission that, having regard to the correction of any error made in an article published on 24 July 2014, and subsequent events, a basis for restraining the ABC and the journalist, Ms Aird, in the terms sought by Mr Mahmoud is not established.
I turn to consider the position of Fairfax. Ms Norman submitted that the claim against it is hopeless, since the pleading identifies no publication at all that might be attributed to that entity as a publisher. The highest the case is put is at page 12 of the attachment to the notice of motion as filed on the Court file (I note that the pagination of the document served on the parties is different). What appears on that page is the following:
The third defendant Fairfax Media Publications Pty Ltd.
I searched the Website of the State Library [name of Website included] for publication of the defamatory matter on the Sydney Morning Herald in the printed newspapers and on the Internet. I found a long list of entries showing news about me. The first one is 'serial litigant Tosson Mahmoud fights New South Wales Government move to block him from courts'. I clicked on it and the full defamatory text of the whole article published by Claire Aird of the ABC on 24 July 2014 appeared with a big photo of mine as displayed above.
In his oral submissions today, Mr Mahmoud confirmed that it is his contention that the article published by Claire Aird of the ABC was replicated verbatim and in full in the printed edition of the Sydney Morning Herald on 24 July 2014. The matter as presently pleaded is plainly bad in form. More importantly, according to the material brought forward by Mr Mahmoud in support of his application, it was not until 25 July 2014 that the article appeared in the Sydney Morning Herald under the heading identified. The prospect that the Sydney Morning Herald in its printed edition published verbatim and in the same form an article first published by the ABC the following day must be dismissed as fanciful. In my view, the claim against the publisher of the printed edition of the Sydney Morning Herald has been demonstrated by Ms Norman's submissions to be hopeless. The motion and the proceedings as against that entity must be dismissed.
I deal finally with the position of Yahoo!7. Mr Parsons noted difficulties in the manner in which the case is identified as against that entity as well. The relevant material appears at pages 23 and 24 of the attachment to the notice of motion. What appears there is a series of headings evidently replicating embedded links to articles. Mr Mahmoud seeks to sue both on the words captured in each link and the underlying material to which one is taken by clicking on the link, which is the principal matter complained of, the article written by Ms Aird. On either basis, the way in which the matter is presently set out in the notice of motion suffers from difficulties of form. But ultimately my conclusion as to the claim against Yahoo!7 is that it should follow the fate of the application as against the ABC.
Any link which includes the suggestion that Mr Mahmoud has in fact been declared a vexatious litigant, if it was published on 24 July 2014, would not then have been correct but, as matters presently stand, is correct. The prospect of a successful claim in defamation being brought on the basis of that imputation, or at least one in which any substantial damages might be awarded, is negligible.
For those reasons, I have concluded that the plaintiff's motion must be dismissed as against each of the four defendants represented today.
Mr Mahmoud filed an affidavit of service of the notice of motion on the other defendants to the motion and submitted that injunctions should be ordered as against those absent defendants. It is doubtful whether the affidavit establishes proper service on any of those defendants but, in any event, it would not be appropriate to make orders against those parties in the circumstances I have recited.
Separately, Mr Mahmoud seeks default judgment in the proceedings against defendants who allegedly have been served but have not appeared. Those defendants are identified in a separate affidavit of service provided by Mr Mahmoud in which he has indicated with a tick those defendants that have been served. Mr Mahmoud submitted that he should have default judgment in the proceedings against those defendants. In light of the difficulties with the proceedings I have recited and Mr Mahmoud's concession that the statement of claim requires amendment, I do not think it would be appropriate to enter default judgment against any defendant at this stage.
Finally, as recorded at the outset of this judgment, Mr Mahmoud seeks an opportunity to amend the statement of claim. I think he accepts the wisdom of awaiting the publication of the Court of Appeal's judgment before doing that. In any event, the burden of the matters set out in his letter to the Court of 9 November 2016 is to seek a generous period within which to amend, for other reasons relating to his state of health and other demands on his time.
Ms Barnett submitted that, in the face of the concession that the statement of claim requires amendment, I should strike it out with leave to re-plead. In my view, that is the appropriate order. I am satisfied that is so, not only on the strength of Mr Mahmoud's concession but by reference to my own consideration of the form of the pleading, which is not satisfactory in its present form.
I am further satisfied that I should accede to Mr Mahmoud's application for a generous period of time within which to bring forward a form of amended pleading. In particular, that step should abide the publication of the Court of Appeal's reserved decision in the appeal brought by Mr Mahmoud against the orders made under the Vexatious Proceedings Act.
For those reasons, I make the following orders:
1. The plaintiff's motion filed 31 January 2017 is dismissed.
2. I order the plaintiff to pay the costs of those defendants present and represented today of that notice of motion.
3. The statement of claim filed 24 July 2015 is struck out with leave to re-plead.
4. The proceedings as against Fairfax Media Publications Pty Ltd (named in the statement of claim as the Sydney Morning Herald of New South Wales Australia) are dismissed. I order Mr Mahmoud to pay that party's costs of the proceedings.
5. I grant leave to Mr Mahmoud to file an amended statement of claim within 28 days after the publication of the reserved decision of the Court of Appeal in proceedings 2015/292179.
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: 15 February 2017