Mohareb v Harbour Radio Pty Ltd

Supreme Court of NSW|2017-03-13|Before: McCallum J

Solicitors: Banki Haddock Fiora (first and second defendants) Crown Solicitor's Office (third defendant) File Number(s): 2017/25606

Judgment

HER HONOUR: These are proceedings for defamation arising out of two broadcasts on Radio 2GB by the popular presenter, Mr Ray Hadley. Broadly speaking, the broadcasts concerned the topic of vexatious litigants, with particular focus on the plaintiff. Mr Hadley's discussion of that topic included an interview with the Attorney General.
The first and second defendants to the proceedings are the proprietor of the radio station and Mr Hadley. The third defendant is presently named as the Attorney General. In correspondence between the parties, the plaintiff accepts the pleading should be amended so as to name the State of New South Wales as the defendant to the claim against the Attorney.
The proceedings came before me last week for the first listing. The Defamation List Practice Note SC CL 4 requires the parties on that occasion to be ready to argue any objections to the form of the pleading. Two matters were raised by the defendants pursuant to that requirement. The first is the Attorney General's application for a ruling that the matters particularised in support of the claim against her, insofar as it concerns the first matter complained of, are incapable of proving that she is liable as a publisher of that broadcast. Secondly, both parties put forward objections to the imputations specified by the plaintiff. This judgment determines those matters.

The claim against the Attorney General

Dealing first with the Attorney General's application, the issue of publication in respect of the first matter complained of is pleaded as follows: "The defendants published for general reception on radio station 2GB," the first matter complained of.
The Attorney General submits that she cannot be liable as a publisher of that publication.
The argument proceeded by reference to a revised version of a transcript of that broadcast provided by the parties. It is clear from that document that the Attorney participated in the interview by telephone only. She was not physically present in the studio with Mr Hadley. The significance of that consideration is that, plainly, there was no opportunity for her to speak on the programme before telephone contact was established and it is not clear whether she even had an opportunity to hear the words spoken by Mr Hadley before that point.
On that basis, it is contended that the Attorney cannot be taken to have joined in the whole of the broadcast and certainly she had no control over its final form.
The form of the broadcast was, first, a lengthy introduction by Mr Hadley arising out of his receipt of an email from a listener about a "serial litigant". The plaintiff was not specifically named in the broadcast but it is not contended by any of the defendants that it is not capable of referring to him. Mr Hadley described various events evidently recounted in the listener's email, including reporting the listener's conclusion that "the Attorney General in New South Wales seems powerless to halt this idiot's constant vexatious law suits."
Mr Hadley pursued that topic, saying: "But I wanted to speak to the New South Wales Attorney General, Gabrielle Upton, in general terms, to find out what can be done with vexatious litigants, people who repeatedly launch legal bids without any success, have costs ordered against them and just simply ignore them and the matters continue in other courts. The Attorney General of New South Wales is on the line. Attorney General, good morning."
The Attorney responds with the same greeting. Mr Hadley then asks, "What constitutes a vexatious litigant?" What follows is a general exchange about the legislation dealing with vexatious litigants and a Government proposal to review the current regime.
Ultimately, the exchange concludes with Mr Hadley asking the Attorney whether she was aware of the particular case, presumably referring to the case raised by the listener in his email. The Attorney responds: "No, you brought it to my attention and I would encourage whoever is involved to write to me to put all that forward to ask me to assess what is going on. I don't have all the facts."
It was suggested during argument that that passage continues with words omitted from the transcript, being "you have more than me at the moment". I do not think anything turns on those additional words for present purposes.
The principles concerning the circumstances in which a person who consents to be interviewed by a journalist may be held liable as a publisher of the whole of the publication produced using or including material provided during the interview were considered recently by the Court of Appeal and may be taken to be firmly established.
Ms Chrysanthou recited the line of authority beginning with the decision of the Court of Appeal in Bracks v Smyth-Kirk [2009] NSWCA 401 which in turn cites the judgment of McColl JA in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231. It is probably sufficient for present purposes, however, to refer only to the more recent decision of the Court of Appeal in Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288. In that case, as I understand the judgment, the Court of Appeal approved the formulation articulated by me at first instance where I said that the authorities cited in argument established that: "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."
I have previously observed, I think in that case, that the issue whether a person is capable of being liable as a publisher must always turn on the individual circumstances of the case. That is probably a self-evident proposition.
The third defendant complains that, in the present case, there are no particulars capable of sustaining the allegation of publication. It is necessary in that context to consider the form of the publication, being an oral broadcast on live radio. As submitted by Ms Chrysanthou, who appears for the Attorney General, there is little in those circumstances that could be described as participation by the Attorney General in the defamation. As submitted by Ms Chrysanthou, the Attorney General did not make any statement in the terms of the defamatory imputations in the present case and indeed qualified her answers to Mr Hadley by making plain that she knew nothing of the individual case evidently being referred to by him. The Attorney herself said nothing about the plaintiff or referring to him. She simply explained, in response to questions from Mr Hadley, the law relating to vexatious litigants.
Mr Rasmussen, who appears for the plaintiff, submitted, by reference to the correspondence between the parties, that additional particulars had been provided such as to sustain the allegation of publication.
First, he submitted that the Attorney is the primary focus of the broadcast and that her participation in it is the foundation for a number of defamatory imputations specified in the pleading, particularly including one imputation which draws on her status. That may be so but, in my view, as submitted by Ms Chrysanthou, the Attorney's contribution was limited to explaining the terms of the relevant law rather than importing the concepts she explained as descriptions of or attributions relating to the plaintiff in particular.
Separately, Mr Rasmussen sought to sustain the Attorney's liability as a publisher on the basis that she had, in a later broadcast (which is the second matter complained of in these proceedings), in effect adopted any criticism of the plaintiff made by the first broadcast. He submitted that the case falls squarely within the principles stated in Webb v Bloch [1928] HCA 50; 41 CLR 331.
Ms Chrysanthou submitted that I previously considered and rejected essentially the same submission, in Zeccola v Fairfax Media Publications (No 3) [2015] NSWSC 1007 at [18] to [19]. At [18] of that judgment, I recorded Mr Rasmussen's reliance on the fact that, in Webb v Bloch, some of the defendants ultimately held liable for the publication of the defamatory circular had not seen it in its final form. At [19], I said: "However, what is significant about the facts of Webb v Bloch is that each of the defendants was a member of a committee that had condoned or joined in the instruction to the solicitor Nolan to issue the circular. Upon analysis, it can readily be seen that each of the decisions in The Queen v Cooper, Parkes v Prescott and Webb v Bloch is ultimately a decision turning on the principles of agency. What is critical to each case is the fact that there was a request to publish combined with the fact that what was ultimately published was either a correct account of what was requested to be published or was authorised without the defendants having or exercising the opportunity to confirm that it was a correct account."
I considered that liability for publication could be understood in those cases in accordance with ordinary principles of principal and agent. The Attorney's position in the present case may be distinguished from Webb v Bloch on the same basis.
Mr Rasmussen relied on material contained in the internet version of the broadcast, which includes a photograph of the Attorney General. Mr Rasmussen submitted that the inclusion of her photograph reveals that the Attorney must be taken to have consented to the whole of the matter complained of.
It is relevant to note in that context that the Attorney is not in fact sued in respect of the publication on the internet. In any event, even if, as appeared to be the case during argument, that is due to oversight, I do not think the fact that a photograph of the Attorney was placed on the internet by the first defendant or the managers of its website is capable of indicating assent to the whole of the content of the matter complained of on the Attorney's part.
I should note one further argument put by Mr Rasmussen, which related to a part of the matter complained of where the broadcaster turned from the topic of vexatious litigants to a different topic. The presenter made reference at that point to wishing to ask a "question without notice". Mr Rasmussen submitted that, by implication, one could infer that the Attorney was put on notice of the earlier questions she was to be asked. That may be so. However, as already explained, those earlier questions do not relate specifically to the plaintiff but only to the principles required to be understood in the regime of vexatious litigants.
Mr Rasmussen reminded me of two recent decisions of the Court of Appeal which reinforce the caution the court must take before striking out a claim or part of a claim on a preliminary basis, citing Younan v Nationwide News Pty Ltd [2013] NSWCA 335 and Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228. I am mindful of the principles stated in those cases.
Those cases do not hold, however, that the Court should shirk from exercising that power in a proper case. On the contrary, the court is required in accordance with its duties under pt 6 of the Civil Procedure Act 2005 (NSW) to give close consideration at an early stage to any issue raised of this kind to avoid waste of time, legal costs and valuable court resources.
In this case, I am persuaded that the claim as against the Attorney General as a publisher of the first matter complained of is manifestly unsustainable in accordance with the principles to which I have referred. The application must succeed.

Objections to imputations

The defendants raised a series of objections to the imputations sought to be relied on by the plaintiff (set out in a schedule provided by Mr Rasmussen). The first objection was resolved during argument but it is appropriate to record what transpired.
The defendants submitted that imputations (a), (d), (e) and (f) in respect of the first matter complained of do not differ in substance. Those imputations are: (a) "The plaintiff is a vexatious litigant." (d) "The plaintiff is a serial litigant, who repeatedly launches legal bids without any success." (e) "The plaintiff harasses innocent and helpless people with legal actions brought without good reason." (f) "The plaintiff clogs up the courts with nuisance matters."
By the conclusion of argument, the position had been reached where the defendants indicated that, if imputation (a) was withdrawn or struck out, they would not press the objection to imputations (d), (e) and (f). Mr Rasmussen, in turn, indicated in the circumstances that he would not press imputation (a). Accordingly, imputations (d), (e) and (f) will go to the jury and imputation (a) should be omitted from the next version of the pleading.
The second objection was to imputation (c), which is: (c) "The plaintiff's behaviour was so abusive, irrational and out of control that it justified the intervention of Ray Hadley, by employing his media influence, to stop it."
The defendants submitted that the imputation is imprecise and rhetorical. There is some analogy between that imputation and the imputation considered in a decision relied on by the defendants being the decision of Levine J in Waterhouse v David Syme & Co Ltd [2000] NSWSC 817. The imputation under consideration in that case was: "The plaintiff so misconducted himself that "The Sunday Age" had reason to identify him and only him as the bookmaker who backed Risley in an article entitled "Who Killed George Brown" which alleged that persons who lost money on Risley when it failed to win paid two men to murder and torture George Brown."
In respect of that imputation, Levine J said: "As to imputation (i) in the course of his submissions Mr Harris remarked, pertinently, that in addition to any inference upon inference involved in a reader coming to a conclusion constituted by the imputation, it would also involve an illogical grotesquerie: namely, the requirement to understand that each and every person who lost money on Risley was somehow involved in a conspiracy to murder and torture George Brown. This imputation in each case, in my view, is a tortured, illogical, strained and artificial construction of the matter complained of."
Mr Richardson, who appears for the first and second defendants, submitted that an imputation of the kind considered in that case and imputation (c) in the present case could almost always be squeezed out of any media publication, since it could always be argued that the fact that the topic attracted the attention of the media gave rise to an imputation that the topic justified the attention of the media.
In my view, that is another way of saying that the imputation is ultimately rhetorical. The task for the pleader in specifying what it is that the matter complained of attributed to the plaintiff is to distil an act or condition. The embellishment of a simple attribution of an act or condition with a description of people's likely reaction to it in the manner of imputation (c) add no more than rhetorical flourish, in my view. Imputation (c) should be struck out on that basis.
The next objection is to imputation (g), which was reformulated by the plaintiff in the following terms: (g) "The plaintiff has an inconsequential and empty life for which he compensates by wanting to become a great and heroic lawyer."
The objection was that the imputation is imprecise and will cause obvious difficulty at trial. Ms Chrysanthou noted that there is nothing defamatory in being described as a person who wants to become a great and heroic lawyer. Mr Richardson professed treasuring that ambition himself.
The real sting of the imputation is in the first part, in the attribution that the plaintiff has an inconsequential and empty life. The additional words, in my view, are confusing and do not add to the sting. The imputation in its present form must be struck out.
I note that the imputation replaces a form of imputation which was not argued before me but which seemed to capture what it was that the plaintiff wished to draw from the matter complained of. It may be necessary to hear the parties further about that formulation.
Finally, the defendants object to imputation (h), which is: (h) "The plaintiff's behaviour is so clearly and blatantly vexatious that any reasonable person without the benefit of legal knowledge or expertise, can readily conclude that the plaintiff is abusing the courts and the legal system."
Mr Richardson submitted that the sting of the imputation is that the plaintiff is a vexatious litigant, a proposition amply captured in other imputations. He further submitted that, leaving aside that clear sting, the imputation is imprecise, rhetorical and full of extraneous words that do not add to the sting: cf Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419 at 420G where Hunt J said: "If the imputation upon which the plaintiff relies is to express (as it must) the precise act or condition asserted of or attributed to the plaintiff all with which he is charged then the addition within that imputation of detail which may or may not be material to what must be proved by the defendant in order to justify the truth of that imputation is embarrassing to the defendant and will be struck out."
Upon analysis, the imputation really says little more than that the plaintiff is at the worse end of the scale of vexatious litigants. The reference to the likely reaction of any reasonable person adds nothing to that sting and is otherwise embarrassing and likely to introduce confusion. That imputation will be struck out.
Turning to the imputations specified in respect of the second matter complained of, again the defendants submitted that a number of imputations differently formulated do not differ in substance.
As with the first matter complained of, the first is an imputation that the plaintiff is a vexatious litigant, the remaining three being imputations (c), (d) and (e) as follows: (c) "The plaintiff repeatedly launches vexatious legal actions without success." (d) "The plaintiff clogs the courts with his vexatious legal cases wasting a huge amount of the Court's time and money." (e) "The plaintiff unfairly pursues people before the courts."
Unfortunately, however, the concessions made in respect of the first matter complained of do not assist in resolving this objection in respect of the second matter complained of because imputations (c) and (d) include the term "vexatious". In the circumstances, Mr Rasmussen presses both imputation (a) and each of imputations (c) and (d) including the word "vexatious".
In my view, that term is insufficiently precise. It is a term the content of which might be known to a lawyer by reference to the provisions of the Vexatious Proceedings Act 2008 (NSW) but that would not be known to the ordinary reasonable reader. Imputation (a) will be struck out as being bad in form, as will imputations (c) and (d), with leave to re-plead.
A separate objection was taken to imputation (e), that the plaintiff unfairly pursues people before the court. Those words are drawn from the words used by the Attorney during the interview. It was submitted, however, that the term "unfairly" is of imprecise meaning unless it means what is already captured in imputations (c) and (d).
In my view, there is force in that submission, based on a fair reading of the whole of the matter complained. Imputation (e) should not be allowed to stand separately, although it would be open to the plaintiff in re-pleading imputations (c) and (d) to endeavour to recast it in a way that specified the conduct.
The next objection was that imputations (f) and (g) do not differ in substance. They are: (f) "The plaintiff's behaviour, in repeatedly launching legal actions without any success, unfairly pursuing people before the courts and deliberately disobeying costs orders, was so concerning that it justified the Attorney General urgently applying for a vexatious proceedings order against him." (g) "The plaintiff's behaviour, in repeatedly launching legal actions without any success, unfairly pursuing people before the courts and deliberately disobeying costs orders, was so concerning that it warranted a public warning from the Attorney General that his behaviour was being watched."
The form of the imputations in my view is to repeat the same sting while specifying different consequences or characterisations of what flowed from that same behaviour. I do not think those imputations differ in substance. The plaintiff should elect between them.
Finally, the defendants object to imputation (h), as follows: (h) "The plaintiff's behaviour, in repeatedly launching legal actions without any success, unfairly pursuing people before the courts and deliberately disobeying costs orders, is so scandalous in its abusiveness that it causes the kind of despair which would lead a reasonable person to want to tear their hair out."
Mr Richardson submitted that the imputation is in a similar category to imputation (h) in respect of the first matter complained of; that is, that it is really another way of saying the plaintiff is a "really bad" vexatious litigant and is otherwise in the nature of a rhetorical statement or a speech, not an imputation.
The difficulties that would arise in attempting to plead to it are manifest. In my view the imputation must be struck out.
I direct the parties to bring in short minutes of order reflecting these reasons and providing directions for the future conduct of the proceedings in accordance with the Practice Note.

Amendments 06 April 2017 - Typographical errors to quote para [41] 20 April 2017 - Incorrect judgment date on coversheet 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: 20 April 2017

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Judgment (5 paragraphs)

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Cases Cited (8)