Solicitors:
Nader Mohareb (self-represented)
Banki Haddock Fiora (first and second defendants)
Crown Solicitor for NSW (third defendant)
File Number(s): 2017/35614
[2]
Judgment
HER HONOUR: These are proceedings for defamation arising out of the publication of an article in the Sun Herald in print and on-line. The article reported on a decision of the New South Wales Attorney-General to seek orders against the plaintiff, Mr Mohareb, under the Vexatious Proceedings Act 2008 (NSW) (the Attorney's application was ultimately dismissed: see The Attorney General for the State of New South Wales v Mohareb [2016] NSWSC 1823).
The first and second defendants are the proprietor of the newspaper and one of its employed journalists. The third defendant is presently named as the Attorney-General for New South Wales. As noted in another judgment published today in separate proceedings commenced by Mr Mohareb, it appears to be accepted by him that the Attorney-General should not be named as a party and that the proper defendant is the State of New South Wales.
The proceedings are before the Court today for the first listing. In accordance with the Defamation List Practice Note SC CL 4, the defendants have brought forward for determination their objections to the form of the pleadings and a discrete point arising under s 23 of the Defamation Act 2005 (NSW). For reasons it is not necessary to rehearse, the objections taken on behalf of the Attorney had to be deferred for later consideration. This judgment determines the first and second defendants' objections to the imputations specified in respect of the second and third matters complained of. It was common ground that the Court's rulings concerning the second matter complained of (the printed article) would govern the pleading of the third matter complained of.
Mohareb v Fairfax Media Publications Pty Limited [2017] NSWSC 288 | Case summary | Zoe
The first objection is to imputation 9(ii), which is:
The plaintiff unfairly pursues innocent people by suing them.
The defendants submit that the inclusion of the term "unfairly" renders the imputation insufficiently precise and that, although it is the term used in the article itself (attributed to the Attorney-General), its meaning is unclear unless it means what is captured in separate imputations (iii), (iv) and (v). Those additional imputations are as follows:
(iii) The plaintiff is a vexatious litigant in that he has frequently instituted or conducted proceedings that are an abuse of process;
(iv) The plaintiff is a vexatious litigant in that he has frequently instituted or conducted proceedings in a way so as to harass or annoy his neighbours;
(v) The plaintiff is a vexatious litigant in that he has frequently instituted or conducted proceedings that are without reasonable grounds.
In my view there is force in the defendants' objection on that basis. Mr Rasmussen, who appears for the plaintiff, submitted that there is no ambiguity in the term "unfairly"; that it is not what is sometimes termed a "weasel word" and that it contains a clear and different sting from imputations (iii), (iv) and (v). Whilst it is perhaps correct to say that the word "unfairly" is not in itself necessarily a weasel word, in the present context it is insufficiently precise for inclusion in an imputation, in my view. The scope of ways in which a person might "unfairly" pursue another by suing is broad and diverse. More particular meaning is captured in the other imputations; imputation (ii) should not be permitted to stand alongside those.
Separately, the defendants submit that imputation (iii) is insufficiently precise by reason of the inclusion of the phrase "abuse of process". That is a term of art understood by lawyers but even in that context its meaning is extremely broad. Abuse of process is a protean concept; in my view, its inclusion in an imputation is problematic. That imputation will be struck out.
The next objection is to imputation (vii), which is:
The plaintiff is such an evil man that he is probably related to Satan.
That imputation is drawn from material included within the matter complained of consisting of a photograph and a caption. The photograph apparently depicts a person of the name of Matthew Palmer, who it appears is a person the plaintiff sued in earlier proceedings. The caption is:
Matthew Palmer (pictured) posted a photo of a poster on Facebook that said his neighbour Nader Mohareb "may or may not be related to Satan".
Mr Richardson, who appears for the first and second defendants, submitted that the imputation is drawn from material falling in the category of propositions that it is impossible for the reader to take literally.
It is trite principle that an imputation must specify with clarity and precision an act or condition allegedly attributed to the plaintiff by the defamatory matter complained of. The importance of that task derives from the fact that it is the imputation that defines the issues in the proceedings, in particular informing some of the defences under the Defamation Act. The definition of the issues in turn informs the interlocutory processes of discovery and interrogatories (where allowed) and the scope and course of the trial. Finally, the specificity of the imputation is important at the stage of assessment of damages which, in accordance with the terms of the Defamation Act, is undertaken by the judge.
It should go without saying in that context that, implicitly, the requirement for clarity and precision in the specification of an imputation assumes that the imputation will be something capable (in theory) of being true. That is where I understood Mr Richardson's submission to land. An imputation based on material which it is impossible for the reader to take literally will, in all likelihood, not be capable of being factually true or false.
Mr Rasmussen, who appears for the plaintiff, did not take issue with any of those propositions but, as I understood his submissions, sought to defend the imputation on the basis that it does not fail that test. Specifically, he submitted that many people believe Satan is not a mythical character and that he (Satan, not Mr Rasmussen) is in fact the progenitor of all evil.
I would respectfully understand those propositions to be matters of faith, not fact. But even if that is wrong, the imputation is not capable of being literally true, in that it seeks to attribute the plaintiff with being "probably related to Satan". Whatever belief one has as to the status of Satan, the proposition that a human being could be related to him is one I am comfortably satisfied is incapable of being literally true. It is an attribution of shared genetic material, the impossibility of which does not turn on the existence or otherwise of any god or devil. It is not capable of being literally true and that is its vice. That imputation will be struck out.
The final objection relates to imputation (ix), as follows:
the plaintiff is a criminal.
Mr Richardson did not object to a further imputation (pleaded in the alternative):
the plaintiff is reasonably suspected by the police of being a criminal.
Mr Richardson submitted, however, that the matter complained of is not reasonably capable of attributing the plaintiff with actual guilt of criminal conduct.
The imputation is drawn from the article's repetition of statements contained on posters about the plaintiff, which included as a quote that he is "known to police". That is a term which signifies particular matters to lawyers or at least those involved in the criminal justice system. Specifically, I would understand it to mean a person who has come to the attention of the police but not necessarily been prosecuted or convicted of any criminal offence. It conveys the impression that although the person has not been prosecuted or convicted of any criminal offence, he may well have committed offences.
The ordinary reasonable reader might understand the expression in the same way, or might make something more of it. Certainly, in my view, it might be understood to mean the person had been engaged in criminal conduct. In my view, the imputation is reasonably capable of arising from the matter complained of and should go to the jury.
A separate objection to imputations (x) and (xi) was resolved during argument, Mr Rasmussen conceding that the words, "because the Police decided not to pursue an investigation" should be removed from each of those imputations.
I direct the parties to bring in short minutes of order reflecting these reasons and containing directions as to the future conduct of the proceedings. I order the plaintiff to pay the first and second defendants' costs of the argument today.
[Mr Rasmussen sought leave to amend imputation 9(vii)].
The short minutes should include leave to the plaintiff to re-plead imputation 9(vii) in the following terms: "That the plaintiff is an evil man".
[3]
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Decision last updated: 23 March 2017