Solicitors:
Banki Haddock Fiora (first and second defendants)
Crown Solicitor's Office (third defendant)
File Number(s): 2017/25606
[2]
Judgment
HER HONOUR: These are proceedings for defamation arising out of two broadcasts on the Ray Hadley Morning Show on Radio 2GB. The broadcasts were evidently prompted by an email Mr Hadley received from a listener about his experience with a "serial litigant". It is common ground that the email concerned the plaintiff, Mr Mohareb.
Mr Hadley took the issue up on air with then Attorney-General, Gabrielle Upton, interviewing her by telephone on two occasions. In the first broadcast, Mr Hadley invited the Attorney to explain the process by which an application can be made to this Court to have a person declared a "vexatious litigant". The Attorney concluded the interview by inviting "whoever was involved" (obviously a reference to the author of the email) to put the relevant material before her. That was in January 2016.
The second broadcast was several months later. By that time, the Attorney had evidently received and considered material concerning the plaintiff. She said that she was "so concerned" that she had "urgently applied for a vexatious proceedings order against this gentleman". Her remarks suggested that, apart from the listener who sent the original email, other people had been sued by the plaintiff as well. Mr Hadley commented that he and the Attorney would be next:
Yes, defamation proceedings by Nader Mohareb! Clive Evatt will be his counsel and I'll be calling you as a witness!
He was wrong about the counsel.
The proceedings came before me for first listing in March. On that occasion, I gave rulings as to the defendants' objections to the statement of claim and granted leave to the plaintiff to file an amended statement of claim: Mohareb v Harbour Radio Pty Ltd [2017] NSWSC 353. The plaintiff filed an amended statement of claim, to which the defendants have a small number of objections. This judgment determines those objections.
First, the defendants object to imputation 9(e), as follows:
The plaintiff pursues innocent people before the courts.
I ruled on an objection to the same imputation in separate proceedings commenced by Mr Mohareb in respect of articles that appeared in The Sun-Herald: see Mohareb v Fairfax Media Publications Pty Ltd (No 2) [2017] NSWSC 546 at [2] to [6]. Mr Rasmussen, who appears for the plaintiff, accepted that the objection in the present proceedings would be governed by that ruling.
The next objection relates to imputation 9(g). In order to make sense of the argument, it is necessary to set out three imputations pleaded in the original statement of claim, being imputations 9(f), (g) and (h) as follows:
(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.
(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 caused the kind of despair which would lead a reasonable person to want to tear their hair out.
In the earlier judgment, I struck out imputation (h) on the ground that it was bad in form, holding that it was in the nature of a rhetorical statement or a speech, not an imputation, and that it would be impossible to plead to (at [52]-[53]).
I also ruled on an objection that imputations (f) and (g) did not differ in substance, contrary to the requirement of r 14.30(3) of the Uniform Civil Procedure Rules 2005 (NSW). I upheld the objection (at [50]), holding that the form of the imputations was to repeat the same sting while specifying different consequences or characterisations of what flowed from that same behaviour. I ruled that the plaintiff should elect between imputations (f) and (g). In the amended statement of claim, the plaintiff elected imputation (g), amending it so as to read (emphasis added):
(g) The plaintiff's behaviour, in repeatedly launching legal actions without any success, groundlessly 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.
At the further hearing, the defendants indicated that there was a separate objection taken to imputation (g) which was not ruled upon in my earlier judgment. It was not specified whether that was because the objection was not raised in oral submissions or because it was overlooked by me in my ex tempore judgment. In any event, I took the view that I should rule on that further objection.
Ms Chrysanthou, who appears for the Attorney and whose submissions were adopted by the other defendants, noted that the form of the imputation is to specify an act or condition (the plaintiff's behaviour) together with a conclusion or outcome (it was so concerning that it warranted a public warning from the Attorney General). Ms Chrysanthou submitted that the conclusion or outcome is rhetorical flourish which does not add to what must be proved by the defendants in order to justify the truth of the imputation. It was submitted on that basis that the additional words specifying the conclusion or outcome are liable to be struck out in accordance with the principle stated by Hunt J in Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419 at 420.
Mr Rasmussen submitted that the additional words amount to more than mere rhetorical flourish. He submitted that the Attorney General's response informs an understanding of the behaviour specified in the first part of the imputation in an important respect, by indicating that it was so bad as to warrant the Attorney General's intervention. Adopting an analogy put by me to Ms Chrysanthou during her submissions, Mr Rasmussen submitted that a distinction can validly be drawn between, for example, a sex offender who deserves to be sentenced to a term of imprisonment and a high risk sex offender who poses such risk to the safety of the community as to warrant his continuing detention even after the conclusion of the term of imprisonment imposed. Mr Rasmussen submitted that imputation (g) seeks to plead an attribution that the plaintiff is not only a person who has engaged in behaviour of the kind identified but that the behaviour is so serious as to warrant the more drastic step of issuing a public warning.
In my view, the additional words specifying the reaction said to have been "warranted" by the plaintiff's behaviour are, in the present case, more than mere rhetorical flourish. The Attorney's words relevantly added to the import of the broadcast, suggesting not only that Mr Mohareb is a person who has engaged in the behaviour specified (which, in itself, would not necessarily warrant a personal response from the Attorney), but also that the seriousness of his behaviour fell at the higher end of the scale and called for a stern response.
Ms Chrysanthou asked, rhetorically, how the defendants could prove more than that the plaintiff "repeatedly" launched unsuccessful legal actions. The answer is that the defendants will have to prove, in order to justify imputation (g), that the seriousness of the repetitive conduct was such as to warrant a public warning by the Attorney General. It is possible to imagine conduct of the kind identified in the imputation which would fall short of that high level of seriousness.
I do not think the decision of Hunt J in Mayfield-Smith dictates a different conclusion. In that case, a report in The Daily Mirror quoted an apprentice jockey as having told racing stewards that the plaintiff (a trainer) had threatened "If you ever hit my horse over the head with a whip I'll hit you over the head". The article was published under a headline which attributed the trainer with the words "I'll punch you". The plaintiff pleaded an imputation that "the plaintiff had threatened apprentice Dufficy by saying 'I'll punch you'".
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 or with which he is charged (see Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, at p 678), 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 (see Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, at p 41) is embarrassing to the defendant and will be struck out pursuant to Pt 15, r 26(1)(b): Clines v Australian Consolidated Press Ltd (1965) 66 SR (NSW) 321, at pp 322, 323, 329, 331; 83 WN (Pt 2) 299, at pp 300, 306, 308; Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472, at p 477.
It may be noted, in passing, that neither of the decisions cited by his Honour was a defamation case. In each case, the "detail which may or may not be material to what must be proved by the defendant" was plainly extraneous to the cause of action pleaded. Importantly, his honour recorded in the next paragraph the concession (presumably made by the plaintiff) that there was no difference in substance between the threat expressed in the headline ("I'll punch you") and that expressed in the body of the article ("I'll hit you over the head"). Had that concession not been secured, it is difficult to see how the conclusion could have been reached that the inclusion of the additional words "by saying 'I'll punch you'" were embarrassing and liable to be struck out.
In responding to Ms Chrysanthou's submissions, Mr Rasmussen sought to revisit my ruling in respect of imputations (f) and (g), submitting that they conveyed two separate, distinct allegations made by the Attorney. That is the impression conveyed if attention is confined to the two separate imputations. However, a consideration of the content of the matter complained of makes plain that the Attorney was referring effectively to the same thing.
The Attorney said:
Well, there you go! But look, you know, this is concerning. This is something that I've acted on, urgent application today and look, that gentleman is on notice that his behaviour is being watched.
The report that the Attorney had seen fit to take urgent action is, in my view, reasonably capable of conveying a more serious imputation of the kind captured in either (f) or (g). However, in my view, it is clear enough from those words that the Attorney was not referring to two discrete actions taken by her in response to the material she had considered (commencing "urgent" proceedings and issuing a public warning). Rather, she was announcing her decision to bring an urgent application, the effect of which would be to put Mr Mohareb on notice that his behaviour was being watched.
For that reason, I would adhere to my earlier ruling that imputations (f) and (g) (considered, as they must be, by reference to the whole of the matter complained of) do not differ in substance.
The final objection was resolved during argument (at T17). The position reached was that the defendants would not object to imputation (i) if it is amended to read:
The plaintiff has unfairly pursued his neighbour before the courts by bringing a groundless legal action for which he has deliberately disobeyed orders to pay costs.
I make the following directions for the future conduct of the proceedings:
1. Plaintiff to file and serve a further amended statement of claim in accordance with these reasons on or before 22 May 2017;
2. Defendants to file and serve a defence on or before 16 June 2017;
3. Plaintiff to serve any reply on or before 23 June 2017;
4. Proceedings listed for second listing on 21 July 2017.
[3]
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Decision last updated: 30 May 2017