Mohareb v Booth

Court of Appeal (NSW)|2020-03-24|Before: Basten JA, White JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT: On 1 April 2019 Acting District Court Judge Curtis gave judgment for the defendant, Taylor Booth, in defamation proceedings brought against him by the applicant, Nader Mohareb. The applicant seeks leave to appeal from that judgment. The application was set out down for a concurrent hearing with the proposed appeal. At the conclusion of the hearing the court made the orders set out at [44] hereof. These are our reasons for making those orders.

Proceedings in District Court

The proceedings below were commenced by statement of claim filed on 30 September 2016. The pleading alleged that Mr Booth, then in charge of a passenger ferry travelling from Church Point to Scotland Island, made statements on two occasions in the presence of other passengers which were defamatory of the applicant. The statements were made on 30 September 2015 and 4 October 2015. Both statements (contained in a number of exchanges with the applicant) were to the effect that the applicant was "banned" from travelling on the ferry and, by imputation, had conducted himself in such a manner as to justify being banned.
The respondent stated in his defence that on about 6 October 2017, that is one year after the statement of claim was filed, he had served an "offer to make amends" pursuant to Pt 3 of the Defamation Act 2005 (NSW). That offer was not accepted. On 8 August 2018, the respondent filed a defence seeking to rely on the offer to make amends by way of a defence to the whole of the allegations of defamation, pursuant to s 18 of the Defamation Act.
In January 2019, the matter was fixed for hearing before Curtis ADCJ sitting without a jury. The applicant had filed an election for a jury trial on 1 August 2018, pursuant to s 21 of the Defamation Act. On 8 September 2018, a judicial registrar informed him that it was too late, presumably relying on Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 29.2A. It is a ground of the proposed appeal that the applicant was denied an opportunity to have a jury trial, but it is not necessary to address that ground. (Damages are not assessed by a jury.)
With respect to the statements made on 30 September 2015, it appears that the judge accepted that the statements had been made and the imputations conveyed as pleaded. [1] The judge found, in global terms, that "the imputations that the plaintiff had so conducted himself as to be banned from travelling on the ferry" were defamatory. [2] With respect to the statements made on 4 October 2015, the judge again implicitly accepted that the statements had been made as alleged. The judge found that the words complained of conveyed the imputation that the plaintiff was justifiably banned from travelling on the ferry by the owner of the company, [3] and that the imputation was defamatory.
However, the trial judge upheld a defence based on the service of the offer to make amends. Before addressing the reasoning of the trial judge in this respect, it is necessary to refer to the relevant provisions of Pt 3 of the Defamation Act. Part 3, Div 1 includes ss 12-19. In particular, s 14, so far as relevant, reads as follows: 14 When offer to make amends may be made (1) An offer to make amends cannot be made if - (a) 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person, or (b) a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question. (2) A notice is a concerns notice for the purposes of this section if the notice - (a) is in writing, and (b) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern).
It is clear that the intention of a "concerns notice" is that it should precede the commencement of court proceedings. The applicant did not give the respondent a concerns notice prior to commencing proceedings. However, in Zoef v Nationwide News Pty Ltd, [4] a case in which, like the present, no concerns notice was given prior to the service of the statement of claim, Gleeson JA stated, with the agreement of Ward JA and Payne JA: "[92] A statement of claim will operate as a concerns notice for the purposes of the Defamation Act if it complies with the requirements of s 14(2), namely that it is in writing and informs the publisher of the imputations that the aggrieved person considers may be carried by the matter complained of. The effect of s 14(1) is that an offer to make amends cannot be made if 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person."
In this case the offer to make amends was dated 13 September 2017, but the judge found was served on 6 October 2017. According to the trial judge, the defence filed on 8 August 2018 contained a pleading that the offer to make amends had been given on "6 October". The judge set out the offer in full, and then addressed the applicant's submissions in the following terms: [5] "The plaintiff submitted to me that the terms of this offer did not comply with s 14 of the Defamation Act because it was not made within 28 days of the filing and serving of the statement of claim. This defence, as conceived in s 14(1), limits an offer to make amends to 28 days after the publisher was [given] a concerns notice by the aggrieved person. Mr Mohareb concedes that a concerns notice was not served by him and suggested the statement of claim has the same effect. This submission is not sound."
As noted above, the judgment of this Court in Zoef, delivered on 18 October 2016, was consistent with the applicant's submission. The trial judge was therefore in error in rejecting the submission. The offer, made about a year after the service of the statement of claim, did not comply with s 14(1) of the Defamation Act.
There was a second ground raised by the applicant at the trial for rejecting the validity of the offer, namely that the offer was "not reasonable" because it proposed an apology to be published by the applicant. Section 15(1)(d) requires that an offer to make amends "must include an offer to publish, or join in publishing, a reasonable correction of the matter in question". It is not clear whether reliance was placed on a failure to comply with this provision, or whether it was intended to refer to the requirement under s 18(1) that the offer be "reasonable." It is sufficient for present purposes to address a third submission raised by the applicant as to compliance with s 18(1) of the Defamation Act. That provision reads as follows: 18 Effect of failure to accept reasonable offer to make amends (1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if - (a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory, and (b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer, and (c) in all the circumstances the offer was reasonable.
The applicant alleged a failure to comply with par (a); the judge's ruling was contained in the following passage: [6] "Mr Mohareb also submits that the offer did not comply with s 18(1) in that the offer was not made as soon as practicable. The statement of claim was served on the day the limitation period expired. There is evidence within the wealth of otherwise irrelevant material before me to indicate that the plaintiff was involved in many causes of actions against many persons at that time. The affair is an affair not between men of commerce, but between ordinary citizens attempting to live peacefully on an island. In the circumstances I do not regard the lapse of a year as being other than practicable in the circumstances."
This finding cannot be accepted. There are three steps involved in addressing whether the defence was available under s 18(1), by reference to par (a). First, it is necessary to identify the date on which the publisher became aware that the matter is or may be defamatory; secondly, it is necessary to identify the date on which the publisher made the offer, and thirdly, an evaluative judgment is required as to whether the offer was made "as soon as practicable" after the first date.
The dates were determined as involving the passage of 12 months from the respondent becoming aware (when served with the statement of claim) and making the offer. The judge proffered three statements in the passage set out above which appear to be reasons for accepting that the lapse of 12 months did not prevent the offer being made "as soon as practicable" after the first date.
The first proposition (that the statement of claim was served on the day the limitation period expired), has no material relevance to the assessment of practicability. The second statement (that the applicant was involved in many other matters against many persons) is also irrelevant as to the time available to the respondent to make an offer of amends. The third statement, implying that proceedings for defamation may be categorised as those involving commercial matters and those involving disputes between ordinary citizens, with the latter being accorded a more relaxed timetable, finds no basis in the Defamation Act.
The only indication in the Defamation Act as to what might be an appropriate period is the prohibition in s 14(1) on making an offer once 28 days have elapsed since the publisher was given a concerns notice. Putting to one side the fact that the statement of claim may have constituted such a notice, and assuming that the respondent had no notice prior to receiving that document that his statements might be defamatory, there would be an extraordinary mismatch between the requirement of s 14(1) and that of s 18(1) if a 12 month period were acceptable under the latter, but only one month under the former.
On one view, the availability of a full defence for an action for defamation under s 18 may suggest that whatever period is permitted, it is limited by the requirement of s 14(1). That would allow the two provisions to work harmoniously. Section 14(1) identifies circumstances in which an offer to make amends can no longer be made.
A second indicator as to the length of time which may no longer be considered as soon as practicable, is the requirement under the UCPR that a defence be filed within 28 days after the service on the defendant of the statement of claim, absent a direction otherwise. [7]
Given the statutory guidance in the Act and the rules, it is not reasonably open to conclude that the lapse of a year involved the making of an offer "as soon as reasonably practicable". Indeed, the conclusion reached by the trial judge reformulated the statutory test. The conclusion involved error.

Conclusion - defence

The two matters addressed above lead to the conclusion that the trial judge was in error in dismissing the applicant's proceedings in defamation against the respondent.
There was no submission in this Court (Mr Booth did not appear) involving a challenge to the findings that (i) the words complained of were used by the respondent, (ii) the imputations relied on by the applicant were conveyed and (iii) the imputations were defamatory. The applicant did, however, seek judgment in his favour on the question of liability. A judgment would be justified if there were no other defence pursued by the respondent. In the course of the hearing, the applicant was invited to provide to this Court a copy of the defence filed in the defamation proceedings in the District Court: this he did.
It appears that he was provided with an unfiled copy of a defence signed by the respondent's solicitor on 11 May 2018 and emailed to the applicant shortly thereafter. The copy of the defence he provided to the Court had not been filed. However, the judge referred at the commencement of the hearing on 1 April 2019 to a defence filed on 8 August 2018; the Court records confirm that statement. The applicant stated that he had not been served with the document. It would have been desirable if the judge had supplied a copy to the applicant, but that was not done.
The defence included claims of qualified privilege (pars 3, 8 and 13) and contextual truth (pars 9 and 14). Although the trial judge did not deal with these defences, the matter should not be returned to the District Court to allow them to be considered. That is because the respondent did not pursue them at trial. There was no evidence or submissions to support such claims; only a copy of the offer was available to the trial judge. As noted above, the respondent was represented by solicitors up until 7 August 2018 when they filed a notice of ceasing to act, a step which they had foreshadowed to the respondent on 31 July 2018. So far as appears, the respondent has taken no step in the defamation proceedings thereafter, although he was present at the directions hearing in multiple matters on 20 December 2018 when the defamation proceeding was listed for trial on 1 April 2019. He did not appear at the trial. (Nor did he appear in this Court.)
While the applicant had filed a motion in December 2017 seeking default judgment for want of a defence, that motion was never determined. It is possible that once a defence, originally due in October 2016, but subject to extensions granted by the Court, finally due in November 2017, was filed on 8 August 2018, the court assumed that the basis of the motion had been removed. That was not a satisfactory course to take in circumstances where the respondent was unrepresented as of the day before the document was filed and there was no evidence that the defence had been served. Nevertheless, the trial judge was told by the applicant that he had not been served with a copy of the filed defence. [8] In those circumstances, it is not clear why the judge proceeded to deal with the matter as a hearing on the merits. In any event, the respondent had his opportunity to run a case in his own defence and he forwent that opportunity. (Similarly, he has foregone the opportunity to defend the proceedings in this Court.)
In those circumstances, the appropriate course is to enter judgment for the applicant (the plaintiff in the District Court) for damages to be assessed.

Allegations of bias

Proposed ground 6 challenged the refusal of the trial judge to recuse himself on 29 October 2018; ground 7 asserted that the judge continued to display bias and hostility towards the applicant. The grounds may encompass both actual and apprehended bias. At the hearing on 1 April 2019 the applicant did not ask the judge to recuse himself. He submitted that it should be found that the judge was not impartial but was hostile towards and biased against him. In support of that submission the applicant referred to pre-trial applications and to the judge's conduct of a separate proceeding in January 2019.
On 27 September 2018 the judge, over the objection of the applicant, fixed four proceedings for hearing on 29 October 2018, other than claims pleaded in defamation. His Honour also listed for mention on that day a fifth proceeding (the Saratoga Marine proceeding).
On 22 October 2018 the applicant sought leave to appeal from those orders. The grounds of that application included that on 27 September the judge was affected by actual bias and hostility against him. On 29 October 2018 this court refused the applicant leave to appeal. [9] Beazley P and Macfarlan JA stated (at [17]): "A reading of the transcript of 27 September 2018 does not support that submission, nor has Mr Mohareb adduced any other evidence to sustain it."
Later in the morning of 29 October 2018 the applicant made a fresh application to the judge to recuse himself. He stated that he relied on the transcript of 27 September 2018. The judge dismissed the application.
The judge then asked the applicant whether he wished to proceed with the hearing. He said he did not. The judge then dismissed the proceedings insofar as they related to claims of assault and trespass, leaving standing the proceedings relating to defamation. This order did not apply to the Saratoga Marine proceedings. His Honour ordered the appellant to pay the costs of the respondent and another defendant, Mr Alexander Kelso.
The judge then invited the defendants to consider whether they wished to apply for special costs orders. The respondent and Mr Kelso were representing themselves. The defendants applied for indemnity costs. The judge made that order, observing: "Over three years have elapsed since the filing and the hearing of the matter has - although it has been set down several times, it has been constantly delayed by the machinations of Mr Mohareb, who has on multiple occasions sought to delay the matter by applications to the Supreme Court."
So far as appears, the applicant did not appeal or seek leave to appeal from the orders of 29 October 2018. He later applied to the judge to vacate those orders which the judge declined to do.
On 29 and 30 January the judge heard evidence in the Saratoga Marine proceeding. The applicant submitted that during that hearing the judge displayed bias and an animus against him.
An allegation of actual bias must be clearly proved. Such a finding is not made lightly. Adverse findings, even adverse findings that are contrary to the evidence or unreasonable or hopelessly flawed, will not be sufficient. The circumstances in which actual bias is established will be rare and exceptional. [10] The applicant contends that this is such a case.
On 20 March 2020, the applicant filed a summons in this Court seeking leave to appeal from the judgments of 20 December 2019 in the Saratoga Marine proceedings. That summons is listed for directions on 4 May 2020. The grounds of appeal for which leave is sought allege that in conducting those proceedings the judge was actually biased. The applicant also complains of denial of procedural fairness and apprehended bias. He supports these contentions with over 20 closely typed pages of submissions.
It is undesirable and inappropriate to determine in this application the applicant's allegation of bias said to have been demonstrated during the Saratoga Marine proceedings. The respondents to those proceedings have an interest in the issue and have not been heard. Nor is it appropriate to deal with the applicant's submissions relating to hearings from 27 September 2018 in which the respondent to this application was involved. That is because expressing an opinion on those matters may not be determinative, and any such opinion could affect the outcome of the new summons for leave to appeal in the Saratoga Marine proceeding.
Without expressing any opinion as to the claim that the judge was biased, it would be unfortunate if the assessment of damages were to proceed before the judge, but it was later found that the judge ought to have recused himself. Accordingly, we took the unusual course of recommending, rather than ordering, that the assessment of damages be heard by a different judge. An order to that effect would only be justified if the charge of actual or apprehended bias were established. For the above reasons it is not appropriate to determine the grounds of appeal raising bias. This course is a departure from the general principle stated in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd, [11] but it is necessary in the circumstances.

Orders

Absent a successful defence, there is much to be said for the view that the likely damages would be quite limited. Whether there was evidence before the District Court which would have allowed an assessment of damages is unclear; it appears the applicant was not allowed to give oral evidence which might have addressed that issue.
Because the damages would certainly not reach an amount of $100,000, entitling the applicant to an appeal as of right, leave is required. Although there is no evidence before this Court which would provide a basis for assessing damages, it is possible that they would be a small sum. In these circumstances there is a live issue as to whether leave should be given to continue the litigation. On the other hand, there is also no submission before this Court that a defence of triviality was pleaded or could probably be made out. [12]
In the result, this was a case in which the applicant was entitled to have his claim determined on the merits in the District Court but, for reasons identified above, that did not happen. The fact that the likely damages would be extremely limited is not, in those circumstances, a sufficient reason for refusing the applicant leave to appeal. Once leave is granted, it follows that the appeal must be upheld and the judgment in the District Court set aside.
The Court made the following orders: 1. Grant the applicant leave to appeal from the judgment of the District Court delivered on 1 April 2019 dismissing the applicant's proceedings against the respondent in defamation. 2. Allow the appeal and set aside the orders made in the District Court. 3. In place thereof, give judgment for the plaintiff, with damages to be assessed. 4. Remit the matter to the District Court for assessment of damages, with a recommendation that they be determined by a judge other than the trial judge. 5. Order that the defendant pay the plaintiff's costs of the trial, assessed on the basis of an unrepresented party. 6. Order that the respondent pay the applicant's costs in this Court, assessed on the basis of an unrepresented party.

Endnotes

Judgment, p 2.
Judgment, p 2.
Judgment, p 3.
(2016) 92 NSWLR 570; [2016] NSWCA 283.
Judgment, p 5.
Judgment, pp 5-6.
UCPR, r 14.3(1).
DC Tcpt, 1/04/19, p 1(37).
Mohareb v Kelso (No. 3) [2018] NSWCA 250.
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74].
(2006) 229 CLR 577; [2006] HCA 55 per Gummow ACJ at [2], Kirby and Crennan JJ at [117], but cf Callinan J at [172].
Defamation Act, s 33. 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: 27 March 2020

Uniform Civil Procedural Rules 2005(NSW)

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