Mohareb v Fairfax Media Publications Pty Ltd

Supreme Court of NSW|2017-05-05|Before: McCallum J, Nicholas J, Schmidt J

Solicitors: Banki Haddock Fiora (first and second defendants) Crown Solicitor for NSW (third defendant) File Number(s): 2017/35614

Judgment

HER HONOUR: These proceedings raise a difficult question as to the basis on which a person who makes a defamatory statement can be held liable for republication of the statement by the person to whom it was published.
Nader Mohareb had proceedings brought against him by the Attorney General for the State of New South Wales under the Vexatious Proceedings Act 2008 (NSW). Under that Act, a person who has frequently instituted or conducted vexatious proceedings can be prohibited (by order of this Court) from commencing future proceedings except with the leave of the Court.
The Attorney's proceedings against Mr Mohareb were commenced after his conduct had been featured on the popular radio programme, The Ray Hadley Morning Show. One of Mr Hadley's listeners had sent him an email describing Mr Mohareb as "a serial litigant", reciting his own experience of litigation with Mr Mohareb. The Attorney was interviewed by Mr Hadley on air on the topic of vexatious litigants in two separate broadcasts. In the second broadcast, on 20 May 2016, she announced her intention to make the application against Mr Mohareb under the Vexatious Proceedings Act.
After that announcement, a Fairfax journalist who was interested in the same story contacted the Attorney's office seeking quotes for attribution in a forthcoming article. The Attorney's Chief of Staff responded with an email providing four paragraphs of quotes which were confined to the topic of the Attorney's decision to commence proceedings against Mr Mohareb. The journalist wrote an article reporting that decision but also addressing other matters concerning Mr Mohareb clearly derived from other sources. The article was published in The Sun-Herald in print and on line.

Issue for determination

This judgment determines an issue raised by the State as to the way in which the case can proceed against it. Mr Mohareb sues on three publications: the Attorney's email to the journalist, the newspaper article published in print and the newspaper article published on line. The two newspaper articles are in virtually the same terms. For present purposes it is convenient to refer to them jointly as "the article".
It should be noted that this judgment is concerned only with one element of the cause of action, namely, the element of publication. It is not yet established whether the matters complained of are defamatory of Mr Mohareb or, if they are, whether the defendants have a defence to the defamation.
The State accepts that the Attorney published the email to the journalist. It further accepts that, in doing so, she authorised the republication of the contents of the email. On that basis, it would be open to the plaintiff to sue on the email as his cause of action and to rely upon the republication of its contents in the newspaper only as "swelling the damages" (the phrase used in the decision of the English Court of Appeal in Terluk v Berezovsky [2011] EWCA Civ 1534 at [27]). Ms Chrysanthou, who appears for the State, indicated that the State would consent to the filing of an amended statement of claim pleading the case in that way.
The issue raised by the State concerns its potential liability for the newspaper article as a separate cause of action. As the argument was developed, Mr Mohareb contended that the State is liable for publication of the article as a separate cause of action in two ways: first, as a principal or joint tortfeasor in the publication of the article in the newspaper and, secondly, on the basis that the republication in the newspaper of material provided in the email constitutes a separate cause of action (as opposed to an element of damages). The distinction between those two paths to liability is difficult; it may be that they fall within the same overarching principle. However, it is preferable for present purposes to address the issues raised in the terms in which the parties addressed them.
The State contends that the claim against it on either basis is untenable and should not be allowed to proceed.
In light of the State's concession that it would be open to Mr Mohareb to rely upon the newspaper's repetition of the contents of the email as swelling the damages, it is difficult to understand why this issue was so hard fought. If there is any real tactical advantage in the course sought to be pursued by the plaintiff, I confess it escapes me. In any event, the matter having been raised, it is my duty to determine it.
The State took this objection at an early state of the proceedings. The plaintiff sought to address the objection by amendment. The issue was ultimately argued by reference to a proposed amended statement of claim served on 3 May 2017 which has not been filed. Accordingly, it is appropriate to treat the matter raised by the State as the plaintiff's application for leave to file the proposed amended statement of claim. During the course of argument, Mr Rasmussen, who appears for the plaintiff, proposed additional amendments to that draft. This judgment also addresses those additional proposed amendments.
I have decided that leave to amend to plead a separate cause of action against the State as a principal publisher of the article or for republication of the email in the newspaper as a separate cause of action should be refused for the following reasons.

Liability as a principal for publication of the article - principles to be applied

It is not uncommon for public statements by politicians to be reported in the press. As noted in the decision of Hunt J in Sims v Wran [1984] 1 NSWLR 317, it is uncontroversial that such statements will naturally and probably be republished and that the maker of the statement will be responsible for the republication. The question is, on what basis?
In Sims v Wran, Hunt J explained that, when a defamatory quote is republished in the press, the law recognises a distinction (as elusive as it may be) between the author's potential liability for the republication as a separate cause of action and liability going only to damages. It is important to consider the whole of the relevant passage in the judgment. His Honour said at 320C: Where a prominent politician such as the defendant makes a statement at a press conference, it may be taken without doubt that the natural and probable result of his act will be that his statement will be republished in the media, thereby making him responsible for that republication: Speight v Gosnay (1891) 60 LJQB 231 at 232; and usually in whatever form in which that republication takes place: Webb v Bloch (1928) 41 CLR 331 at 363-366. But, if the plaintiff intends to complain separately of that republication, he must plead each such republication in haec verba as a separate paragraph in his statement of claim, to enable the defendant to plead to it whatever defence may be appropriate to that particular publication. On the other hand, as I say, a plaintiff is entitled if he wishes to complain only of the original publication, but to seek to recover as a consequence of that original publication the damage which he suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication: Cutler v McPhail [1962] 2 QB 292 at 298, 299. But, if the plaintiff intends to do so, he is obliged to make his intention clear in his statement of claim.
The proper application of the principle stated in the first paragraph requires an understanding of the two decisions cited by his Honour, Speight v Gosnay and Webb v Bloch. Neither of those decisions addressed the circumstance where the matter alleged to amount to a republication differed in content from the matter complained of as the original publication.
In Speight v Gosnay, the defendant "imputed unchastity" to an unmarried woman (at 232). The report of the decision records only that the slander "was repeated" to a number of persons (including a young man to whom the woman was engaged to be married; he then broke off the engagement). The decision was concerned with the circumstances in which the maker of a defamatory statement will be liable for a third party's repetition of the same statement. In Webb v Bloch, a circular was drafted by a solicitor for a committee. Its circulation to a wider audience was either approved or subsequently ratified by each member of the committee. The decision was concerned with the degree of participation required in order to be liable as a principal in the act of publication.
Neither decision concerned a case where, as here, the matter complained of as the alleged republication was something other than a verbatim repetition of the original publication. As already noted, in the present case, the repetition of the Attorney's statements formed only part of the article and was mixed with unrelated material from other sources.
The principles stated by Hunt J in Sims v Wran must be understood in that context. As set out above, his Honour cited Webb v Bloch as authority for the proposition that a person who makes a statement that will in all likelihood be republished in the media will be responsible for the republication "usually in whatever form in which that republication takes place". In his written submissions, Mr Rasmussen emphasised those words with underlining. In my respectful opinion, his reliance on those words reflects a misapprehension of the sense in which the term "form" is used in that statement of principle. It is clear, when regard is had to the facts of Webb v Bloch, that it is not a reference to content. Webb v Bloch is not authority for the proposition that a person who provides quotes for attribution in a newspaper article will necessarily be liable as a principal in the publication of an article that includes those quotes regardless of any additional content in the article. The decision in Sims v Wran did not address that issue.
The test often cited for liability as a principal is a passage sometimes attributed to Isaacs J in Webb v Bloch at 364; in fact, his Honour there set out a quote from Starkie on the Law of Slander and Libel in turn cited in argument by counsel for the plaintiff in Parkes v Prescott (1869) LR 4 Ex 169 at 173, as follows: All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggests illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected.
In Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, in a passage referring to the test set out above, the Court of Appeal stated that liability as a principal for publication of defamatory material depends upon participation: at [121] per McColl JA; Giles and Campbell JJA agreeing at [1] and [214].
More recently, in Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288, the Court of Appeal approved the following statement by me at first instance in that case: "Where a person merely contributes material to an article but has no control over the publication process, liability as a publisher will not ordinarily be established unless he or she has assented to its final form."
The plaintiff's proposed amendment must be considered against those principles.

Case sought to be pleaded - liability as a principal for publication of the article

The existing proposed amended statement of claim does not plead a case against the State based on liability of the Attorney as a principal in the publication of the newspaper article. The present draft alleges only that "the first and second defendants [the Fairfax parties] wrote and published" the article. In written submissions provided on the morning of the hearing, Mr Rasmussen contended that the plaintiff's case is made clear in the particulars and that, "if necessary", the draft pleading could be amended to include the third defendant by "a small change to the wording". It should go without saying that the proposed change is necessary and that it is not just a small change to the wording. A plaintiff's claim should be pleaded in the pleadings, not the particulars. The additional words proposed by Mr Rasmussen would introduce a whole new cause of action against the third defendant. In any event, Ms Chrysanthou helpfully indicated that she was able to meet the new point.
The particulars relied upon to make the case against the State for liability as a principal in the publication of the article are as follows: (ii) On 20 May 2016 the then AGNSW agreed to and was interviewed by Ray Hadley on the radio station 2GB at which time she announced to a wide and extensive listening audience in NSW that she would be making an urgent application to the Supreme Court of NSW to have the plaintiff declared a vexatious litigant because of her concern about his behaviour. (iii) Between 20 May 2016 and 25 May 2016 the second defendant - who had previously written two articles about the exact same matters raised by Ray Hadley in his interview with the then AGNSW - spoke with the then AGNSW, or a member of her staff, and informed that person that she wished to write an article about the then AGNSW"s application to declare the plaintiff a vexatious litigant and asked if there was something from the AGNSW that she could quote in her article. (iv) In response the then AGNSW (by her Chief of Staff Mr Kevin Wilde) sent an email to the second defendant on 25 May 2016 entitled 'Please quote the Attorney General' (Annexure A1). The sense and substance of that email was published by the first and second defendants online on 28 May 2016 (Annexure A) and in the Sun Herald on 29 May 2016 (Annexure B). (v) At the time that Annexure A1 was sent to the second defendant the then AGNSW knew that the second defendant was a journalist who wrote and published articles for the first defendant, that she had previously written two articles for the first defendant about the exact same issues which were raised by Ray Hadley in his interviews with then AGNSW - but in more much detail - and that the second defendant intended to write an article about the AGNSW's application to have the plaintiff declared a vexatious litigant because of those same issues. The then AGNSW also knew at the time of publication, of the facts, matters and circumstances giving rise to the article as part of her determination to make the application to the Supreme Court of NSW to have the plaintiff declared a vexatious litigant. Each of those facts, matters and circumstances were included in the first and second defendant's publications. (vi) In the premises the third defendant is liable for the publication of Annexure A and B as an accessory to the acts comprising publication of Annexure A and B and as such is a joint and or several tortfeasor with the first and second defendant.
Ms Chrysanthou submitted that those particulars are incapable of meeting the requirements of a claim against the Attorney on the basis of liability as a principal in the publication of the newspaper article. I agree. Certainly, the particulars afford a basis for contending that the Attorney knew it was likely that her quotes would be repeated and that she authorised their repetition. That is the basis for the State's proper concession that, if liability for defamation is established in respect of the publication of the quotes to the journalist, the State will be liable for any swelling of the damages due to their inclusion in the article.
Otherwise, however, the matters stated in the particulars take the issue no further than to assert that the Attorney had made other public statements on the same topic that were widely reported; that she knew the journalist to whom the quotes were provided had written in more detail on the same topic and that she knew the basis on which she had given instructions to commence the vexatious litigant proceedings against Mr Mohareb.
Those matters strengthen the basis for the claim for swelled damages but, in my view, are incapable of sustaining a claim against the Attorney for participation as a principal in the publication of the article. It is not asserted that the Attorney "conduced to" the publication of the article; the journalist approached her. It is not asserted that she suggested that an article be written in the terms in which it appeared, or that she assented to the publication of an article in those terms. It is not asserted that she had any control over the terms of the article as published. In my view, the particulars are simply incapable of establishing a claim on the basis of the principles identified in Webb v Bloch at 364.
Leave to amend to include a claim on that basis should be refused.

Republication as a separate cause of action

As I have indicated, in my view the distinction often drawn between, on the one hand, liability as a principal in the publication of defamatory matter in accordance with the principles stated in Webb v Bloch and, on the other hand, the liability of an original publisher for the republication of his or her defamatory statement by a third person is difficult. Liability on either basis could arguably be reduced to a single statement of principle that recognises each as an example of participation in the act of publication through control or assent. The "sense and substance" requirement (considered below) is logically seen as an aspect of assent; permission to republish a statement would not be understood to extend to publication of any matter that departed from the sense and substance of the original statement or to publication of any additional, unseen matter.
The use of the term "republication" in this context is apt to confuse. If a defamatory statement is repeated verbatim at the request or with the authority of the original publisher, or in circumstances where that is the natural and probable consequence of making the original statement, the original publisher will be liable for the repetition as a separate cause of action. More difficult questions arise when the original statement is altered in the re-telling. The term "republication" is ambiguous in that context and so tends to obscure the importance of that issue. It could refer to the act of repeating a statement verbatim but is often used, rather, to refer to the matter complained of as the republication (which may or may not be a verbatim repetition of the original publication).
As already noted, in the present case, the Attorney accepts that she authorised the journalist to quote the email and, further, that it was the natural and probable consequence of sending the email that it would be quoted. Accordingly, one of the elements of liability for republication as a separate cause of action in accordance with the principles stated in Speight v Gosnay is admitted.
However, as submitted by Ms Chrysanthou, there is a further element that must be established; an original publisher will not be liable for republication by a third party unless the matter complained of by way of republication preserves the sense and substance of the original publication. The authority usually cited for that proposition is Parkes v Prescott.
In that case, defamatory statements had been made at a meeting concerning the conduct of the plaintiff towards his daughter. Reporters were present at the meeting. One of the defendants said he hoped the local press would take notice of "this very scandalous case" and requested the chairman to give an outline of it. The facts were taken down by the reporters and published in the newspaper. It was proved by the reporters that the reports published were a correct summary of what took place. The trial judge directed a verdict to be entered for the defendants. On appeal, that was held (by majority) to have been a misdirection.
The main judgment of the majority was that of Montague Smith J, who said at 178: It was strongly urged for the defendants, that they could not be liable unless they authorised the libel in the very words in which it was published. If this argument is correct, then it must follow that a man could never be liable when he desired another to make and publish an outline or summary of a speech or writing, because such an outline or summary necessitates condensation, and consequent alteration of language. But the argument cannot, as it seems to me, be correct. The man who requests another to make and publish an outline or summary of a speech, writing, or proceedings, must know that the words will be to some extent those of him who makes such summary or outline; and he must, therefore, be taken to constitute him an agent for the purpose, and be answerable for the result, subject always to the question whether the authority has been really followed. If this be not so, a man might become a libeller with impunity. Again, if the very words of the libel, and not its substance, are in these cases to be regarded, a man who gives the manuscript of a libel to an agent to print and publish would not be answerable, if by accident or negligence there were variations in some of the words, although not in the substance, of the libel.
As stated in the headnote to the decision, Parkes v Prescott is authority for the proposition that, where a person makes a request to another to publish defamatory matter provided in a statement and the other person publishes that matter, "adhering to the sense and substance of it", although the language might be changed to some extent, the person making the request "is liable to an action as the publisher".
That is the test at trial. Leave to file the proposed amended statement of claim in the present case should not be refused unless the newspaper article is not reasonably capable of satisfying that requirement. The burden of Mr Rasmussen's argument was that that is a question that must be left to the jury.
In my view, the newspaper article complained of in the present case is incapable of being characterised as a republication of the Attorney's email. It may be accepted that it is at least capable of conveying some of the same imputations. The difficulty is that it also contains a considerable amount of additional material giving rise to additional imputations that are incapable of arising from the Attorney's email. In my view, that is determinative of the present question.
Mr Rasmussen suggested that the problem could be solved by allowing the plaintiff to plead only those parts of the article attributable to the Attorney. I do not think that would be a permissible form of pleading. The matter complained of cannot be severed so as to give rise to separate causes of action against different parties.
An attempt to plead a case in that way was expressly rejected in Bracks v Denoon (Supreme Court (NSW), Nicholas J, 14 December 2006, unrep). His Honour's decision was considered with apparent approval by the Court of Appeal in Bracks v Smyth-Kirk [2009] NSWCA 401 at [53] to [55] per McColl JA; Allsop P agreeing at [1].
A similar attempt was rejected by me in Bateman v Fairfax Media Publications Pty Ltd (No 4) [2015] NSWSC 610 at [29] to [30]. My reasoning in that case turned, in part, on the provisions of the Defamation Act 2005 (NSW). Section 8 of the Act contemplates that a person has a cause of action for defamation in relation to the publication of "defamatory matter". The term "matter" is defined in s 4 as follows: "matter" includes: (a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and (b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and (c) a letter, note or other writing, and (d) a picture, gesture or oral utterance, and (e) any other thing by means of which something may be communicated to a person.
In my view, those provisions are inconsistent with the proposition that a person can sue for part only of an article.
Although s 8 provides that there is a single cause of action for the publication of defamatory matter, even if several imputations are conveyed, a number of the statutory defences focus on the imputations rather than the matter complained of. The Act thus contemplates that each publisher of the "matter" must defend all of the imputations conveyed by that matter in order to establish a defence to the single cause of action arising. To allow a plaintiff to plead a cause of action based on publication of part only of an article would operate unfairly to the defendant in that context.
There is also a degree of tension between the principle which allows a defendant to "strike in" additional material where it forms part of the relevant publication and the notion that an article can be severed according to the role of the particular defendant against whom a case is sought to be pleaded.
Mr Rasmussen relied on two English decisions which he submitted support the proposition that it is permissible to sue on a republication as a separate cause of action holding the original publisher liable only for those passages attributable to him or her. The first was the decision of the Court of Appeal in McManus v Beckham [2002] EWCA Civ 939. In that case, Mrs Victoria Beckham had made loud remarks in a shop discouraging customers from buying photographs said to have been autographed by her husband, the well-known soccer player, Mr David Beckham. Mrs Beckham told the customers that the autographs were "all fakes". Unsurprisingly, the remarks received extensive media coverage.
I do not think that decision assists the plaintiff in the present case. It is clear that the newspaper coverage was not relied upon as a separate cause of action but only as to damages: at [12] of the judgment.
The second decision relied upon by Mr Rasmussen was the decision of the English Court of Appeal in Terluk v Berezovsky [2011] EWCA Civ 1534. That was a case in which an interview with the defendant had been featured in a television broadcast. The broadcast consisted of statements made by the defendant interspersed with commentary by the presenter. It may be accepted that the Court implicitly accepted that it was open to the plaintiff to sue on the broadcast on the basis that "any liability of the defendant was … limited to what he himself had said": at [10]. However, no issue was raised or determined as to the point raised by the present application. The issue argued in Terluk was whether it was necessary for the plaintiff to establish that the defendant "intended or authorised the republication" or whether it was enough if he "ought reasonably to have foreseen the republication": at [23] to [29]. It was not ultimately necessary for the court to determine that issue since it was satisfied that, whichever test is right, it was met in that case.
Mr Rasmussen also relied on the decision of Hunt J in Hanrahan v Ainsworth (1985) 1 NSWLR 370 as another case that assumes it is open to the plaintiff to sue the original publisher for republication of part of the original publication in circumstances where the alleged republication contains additional material. However, it is not possible to discern from the reported decision whether that was so. I do not think the decision in Hanrahan takes the present issue any further.
In my view, once it is recognised that the matter complained of must comprise the whole article, including the material that conveys additional imputations not conveyed by the Attorney's email, it must follow that the article is not capable of meeting the requirement that a republication must be a publication that preserves the sense and substance of the original publication. Further, for the reasons stated, I do not think it is permissible to address that problem by pleading only the words attributed to the Attorney as the matter complained of.
I do not think these conclusions will operate unfairly to the plaintiff since it is clear that it is open to him to rely upon the republication of the contents of the email in the newspaper as swelling the damages.
For those reasons, I make the following orders: 1. leave to file an amended pleading in the terms of the proposed amended statement of claim or in the terms proposed by the plaintiff during argument is refused; 2. leave is granted to the plaintiff to file an amended pleading in accordance with [9] of this judgment.

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: 24 May 2017

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