Mohareb v Harbour Radio Pty Ltd; Mohareb v Fairfax Media Publications Pty Ltd

Supreme Court of NSW|2017-11-24|Before: McCallum J

16] NSWSC 1823 Texts Cited: Defamation List Practice Note SC CL 4, cl 18(c) Category: Procedural and other rulings Parties: Proceedings 2017/25606 Nader Mohareb (plaintiff) Harbour Radio Pty Ltd (first defendant) Ray Hadley (second defendant) The State of New South Wales (third defendant)

Proceedings 2017/35614 Nader Mohareb (plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Louise Hall (second defendant) The State of New South Wales (third defendant) Representation: Counsel: Plaintiff self-represented M Richardson (first and second defendant in both proceedings) S Chrysanthou (third defendant in both proceedings)

Solicitors: Banki Haddock Fiora (first and second defendants in both proceedings) Crown Solicitor's Office (third defendants in both proceedings) File Number(s): 2017/256062017/35614 Publication restriction: None

Judgment

HER HONOUR: Mr Nader Mohareb has brought two actions for defamation. The first relates to material broadcast on Radio 2GB by the well-known presenter, Mr Ray Hadley, concerning the subject of vexatious litigants. Mr Hadley asserted that Mr Mohareb had brought "constant vexatious law suits" and questioned whether he should be declared a vexatious litigant. The second action relates to articles published in The Sydney Morning Herald and The Sun Herald which picked up on the same theme. Mr Mohareb denies that he is a vexatious litigant and seeks to vindicate his reputation against that charge by suing those who have contended otherwise.
In each action, the first defendant is the proprietor of the relevant publication (Harbour Radio and Fairfax respectively), the second defendant is the relevant journalist (Mr Ray Hadley and Ms Louise Hall respectively) and the third defendant is the State of New South Wales. The State is sued as being vicariously liable for the acts of the then Attorney General, Ms Gabrielle Upton. Her role in the publications is explained below.
This judgment determines four applications raising issues common to both proceedings: 1. an application by Mr Mohareb to strike out the defences in both proceedings; 2. applications by the defendants in both proceedings for discovery and interrogatories; 3. an application by Mr Mohareb to have a subpoena issued in the Fairfax proceedings set aside; 4. an application by Mr Mohareb for leave to amend his pleading in the Fairfax proceedings to include a new imputation.

The application to strike out the defences

The circumstances in which the application to strike out the defences is brought require some explanation.
In the proceedings against Harbour Radio, Mr Mohareb sues on two segments of the Ray Hadley Show. The first, broadcast on 29 January 2016, stemmed from an email Mr Hadley had received from one of his listeners about "a serial litigant". Mr Mohareb was not named in the segment but it is clear enough that the email referred to him. The author of the email had been involved in litigation with Mr Mohareb and complained of his experience of that litigation in the email. Mr Hadley used the email as the basis for a segment on the topic of vexatious litigants. He interviewed Ms Upton, who was at that time the Attorney General for the State of New South Wales, on air on that topic. Ms Upton explained the legislation concerning vexatious litigants to Mr Hadley's listeners. She was careful not to be drawn on the particular case raised in the email but encouraged "whoever is involved" to write to her so that she could consider the prospects of "asking the Supreme Court to declare the other person a vexatious litigant".
The second segment was broadcast on 21 May 2016. On that occasion, Mr Hadley referred to Mr Mohareb by name. He again interviewed Ms Upton, who said that she had had a close look at the case and that she was "so concerned" that she had that day "urgently applied for a vexatious proceedings order against this gentleman."
After that announcement on the Ray Hadley Show, 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 by providing quotes concerning the 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 almost identical terms in The Sydney Morning Herald online and in print in The Sun-Herald. Those are the articles sued on in the proceedings against Fairfax.
An application was duly brought by the Attorney General against Mr Mohareb under the Vexatious Proceedings Act 2008 (NSW). Under that Act, the Court has power to make a vexatious proceedings order against "a person who has frequently instituted or conducted vexatious proceedings": s 8(1)(a). The term "vexatious proceedings" is defined in s 6 of the Act as follows: "In this Act, "vexatious proceedings" includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings."
The orders that can be made if the statutory test is satisfied include staying existing proceedings and prohibiting the person from instituting new proceedings other than with the leave of the Court.
The Attorney's application was unsuccessful. The Court held that only a "very small" number of interlocutory applications made by Mr Mohareb had been "vexatious" within the meaning of the Act and that it was not open to conclude that Mr Mohareb had "frequently" instituted or conducted such proceedings: The Attorney General for the State of New South Wales v Mohareb [2016] NSWSC 1823 at [194] (Schmidt J).
The question raised by Mr Mohareb's present application is whether, in light of that decision, the defendants can maintain defences of truth in these proceedings. Mr Mohareb submits that the truth defences constitute an abuse of process because: 1. they attempt to re-litigate issues determined by Schmidt J in the proceedings brought by the Attorney General under the Vexatious Proceedings Act; 2. they attempt to litigate issues which could and should have been litigated in those proceedings; 3. they rely on "allegations that are manifestly groundless, which renders so untenable that they cannot possibly succeed" (affidavit of Mr Mohareb affirmed on 24 November 2017).
It became apparent, as the argument was developed by Mr Mohareb, that the third point is misconceived. Mr Mohareb submitted "all the other allegations that I'm a bad neighbour, that I harass my neighbour, all of that is untenable, they can't prove it. I've given evidence that they can't prove any of that. I'm the victim." As I endeavoured to explain to Mr Mohareb during the hearing, that is an issue for the trial. His assertion that the defence is untenable because "it can't be proven" does not establish a basis for striking out the defence at this preliminary stage.
The first and second points require closer consideration. The argument proceeded on the basis that the issues raised were issue estoppel and abuse of process.

Issue estoppel

The requirements for the doctrine of issue estoppel to apply were affirmed by the High Court in Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [21] (citing Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935) as follows: "(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies."
It is clear from that statement of principle that there can be no estoppel operating against the media defendants, since they were not parties to the proceedings before Schmidt J. Ms Chrysanthou, who appears for the State in both proceedings, faintly suggested that, as the media defendants will accordingly be allowed to "go along [their] merry way and run the truth case", the State could not be precluded from doing the same. I do not think that is correct. If and to the extent that the State is estopped by the decision of Schmidt J from maintaining the truth defence in these proceedings, I doubt whether that hurdle could be overcome by the fact that a different defendant is entitled to maintain the same defences.
Ms Chrysanthou further submitted that there could be no issue estoppel against the State because of the narrow issue determined by Schmidt J in the proceedings under the Vexatious Proceedings Act. It was conceded that the State would be bound to conduct the defences in these proceedings consistently with the prosecution of that application (T23.30). It would follow (and was probably intended as an aspect of that concession) that it would not be open to the State to seek any finding in these proceedings that is inconsistent with any determinative finding made by Schmidt J in her Honour's judgment.
However, as submitted by Ms Chrysanthou, there is not a complete overlap between the matters decided by Schmidt J and the truth defences. It is important in this context to be precise about the issues raised by those defences.
The defence of truth under s 26 of the Defamation Act 2005 (NSW) is directed to the imputations complained of by the plaintiff.
In the Harbour Radio proceedings, there are four matters complained of (each segment having been broadcast on air and also published on the 2GB website). The latest version of the pleading is the further amended statement of claim filed on 2 June 2017.
The State is not sued in respect of the first and second matters complained of in those proceedings, for the reasons explained in my earlier decision in Mohareb v Harbour Radio Pty Ltd [2017] NSWSC 353. In respect of the third and fourth matters complained of, the State pleads the defence of truth to the following imputations: 1. paragraph 9(b): the plaintiff deliberately disobeys court orders to pay costs; 2. paragraph 9(c): the plaintiff repeatedly launches unmeritorious legal actions without success; 3. paragraph 9(d): the plaintiff clogs the courts with his unmeritorious legal cases that waste a huge amount of the court's time and money; 4. paragraph 9(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; 5. paragraph 9(i): 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.
In the Fairfax proceedings, there are three matters complained of. The State is sued only in respect of the first, which is the email containing quotes sent by Ms Upton's office to the journalist, Ms Hall. In its defence filed 21 July 2017, the State pleads the defence of truth to the following imputations specified in respect of that publication: 1. imputation 6(iv): the plaintiff has frequently launched legal actions without reasonable grounds or for improper use; 2. imputation 6(v): the plaintiff's conduct, in frequently conducting unmeritorious legal proceedings, challenges the integrity of the courts; 3. imputation 6(vi): the plaintiff wastes the valuable court resources of New South Wales; 4. imputation 6(vii): the plaintiff pursues innocent people with legal proceedings.
There is some overlap between the particulars of truth in respect of those defences and the particulars advanced by the Attorney General in the proceedings before Schmidt J. In those proceedings, the Attorney General's case, as finally advanced, was based on four separate proceedings brought by Mr Mohareb (summarised at [11] of the judgment).
The first was a claim brought by Mr Mohareb in Queensland in relation to his former employment. The Attorney's contention in respect of those proceedings was particularised as follows: "In Mohareb v Lambert and Rehbin (Seq) Pty Ltd, filing repeated versions of a statement of claim that are liable to be struck out, as set out in Mohareb v Lambert and Rehbin (Seq) Pty Ltd 2010 QSC 126 at [33]-[36]. This was vexatious within the meaning of section 6(d) of the VP Act"
Justice Schmidt rejected that allegation: at [91] of the judgment.
The second was a claim brought by Mr Mohareb against Mr and Mrs Jankulovski. The particulars relied upon by the Attorney General in respect of those proceedings are set out at [97] of the judgment. Justice Schmidt found that two of the applications made by Mr Mohareb in those proceedings were vexatious within the meaning of the Act (at [104] and [116] of the judgment) but was otherwise not persuaded that Mr Mohareb's pursuit or conduct of the proceedings was vexatious.
The third proceedings addressed in Schmidt J's judgment were proceedings brought by Mr Mohareb against Mr Palmer.
The particulars relied upon by the Attorney General in respect of those proceedings are set out at [129] of the judgment. Justice Schmidt held that there was no basis for finding that any of the applications relied upon in those proceedings was vexatious within the meaning of the Act: at [166].
Finally, the Attorney relied on proceedings brought by Mr Mohareb against Alexander Kelso. The relevant particulars are set out at [169] of the judgment. Justice Schmidt found that those proceedings were not vexatious: at [189].
Ms Chrysanthou submitted, in substance, that the imputations defended by the State in these proceedings raise additional or different elements or evidence going beyond the narrow issue determined by Schmidt J. She also noted that the defendants have contextual truth defences which raise broader issues again.
That is borne out by a comparison of the terms of the imputations with the terms of the statutory test applied by Schmidt J. The ratio of her Honour's decision, based on the particulars brought forward by the Attorney General, was that Mr Mohareb had instituted or conducted a very small number of interlocutory applications that were vexatious within the meaning of the Act but that he had not done so "frequently". Most of the imputations relied upon by Mr Mohareb do not raise that exact issue. Imputations 6(iv) and 6(v) in the Fairfax proceedings raise an issue that poses, in substance, the same question. However, even in respect of the truth defences to those imputations, it cannot be said that the same question has been decided in the earlier proceeding. That is because, as noted by Ms Chrysanthou, the truth defences in these proceedings will be determined as at a later time and by reference to a broader range of conduct that is open to be considered cumulatively with the conduct addressed in the particulars relied upon by the Attorney General in support of the Vexatious Proceedings Act application.
The particulars of truth include reference to the Lambert, Jankulovski, Palmer and Kelso proceedings addressed by Schmidt J. However, they also include additional matters including a dispute between Mr Mohareb and Daniel Hine in the Consumer Trader & Tenancy Tribunal, a dispute between Mr Mohareb and Horowitz & Bilinsky Solicitors and a claim brought by Mr Mohareb against Mr and Mrs Valenti in the Local Court of New South Wales. The State also relies on an additional judgment in the Palmer proceedings which was published after the decision of Schmidt J: Mohareb v Palmer [2017] NSWSC 1491 (Adamson J).
As submitted by Mr Richardson, who appears for the media defendants, this issue can be tested by reference to the fact that, even leaving aside the considerations raised by Mr Mohareb's actions for defamation, it would be open to the Attorney General to bring a further application under the Vexatious Proceedings Act based on later conduct in any proceedings (including these). It cannot be said that Schmidt J's decision, published on 16 December 2016, forecloses the issue raised by the statute forever. The question of vexatiousness is cumulative and temporal.
In his affidavit setting out the grounds for this application, Mr Mohareb contended that those other proceedings, although not brought forward in the proceedings before Schmidt J, "could and should have been litigated" in those proceedings. However, that argument was not developed at the hearing and I am left unable to form any view as to whether it has any substance. I would only observe that, having regard to the protective purpose of the Vexatious Proceedings Act and the cumulative aspect of vexatiousness in litigation, it may be doubted whether any kind of estoppel would arise on that basis.
I am not persuaded that the State of New South Wales is estopped by reason of the decision of Schmidt J in the Vexatious Proceedings Act application from conducting a defence of truth in respect of the imputations set out above by reference to particulars that overlap with allegations relied upon in the Vexatious Proceedings Act application. The decision of Schmidt J stands as authority for the proposition that, on the strength of the particulars set out in the judgment, Mr Mohareb was not a person who had frequently instituted or conducted vexatious proceedings within the meaning of the Vexatious Proceedings Act. The imputations sought to be justified by the truth defences raise broader issues and will fall to be determined by reference to a broader range of material, including more recent material.

Abuse of process

As to the question of abuse of process, Ms Chrysanthou noted the decision of the Court of Appeal in O'Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698; [2013] NSWCA 315. In that case, a magistrate sued, as it happens, Harbour Radio in respect of allegedly defamatory comments made by a different presenter. The imputations sued on raised questions as to the quality of the magistrate's decisions as a magistrate. The defendant pleaded the defence of truth. The magistrate sought to have the defence struck out as an abuse of process. Specifically, it was contended that the rule of judicial immunity prevented any inquiry into the manner in which her Honour had heard and decided the matters relied upon in the defence or the correctness of those decisions (and appellate decisions concerning those decisions).
The Court held that the rule of judicial immunity did not prevent any inquiry into the correctness of the magistrate's decisions: at [127] per Beazley P, McColl JA and Tobias AJA agreeing at [131] and [243] respectively. Justice Basten and I decided the matter on other grounds (holding that the magistrate had no cause of action in defamation because the matters complained of related to her discharge of her functions as a judicial officer) and accordingly did not find it necessary to answer the questions concerning abuse of process, but we did not otherwise disagree with the learned President's reasoning: at [240] and [263] respectively.
In her consideration of the principles concerning abuse of process, Beazley P explained that there are circumstances in which the same issue may be litigated in different proceedings, saying (at [112]-[113]): "As the discussion of the authorities demonstrates, proceedings, or an aspect of proceedings, may be found to be an abuse of process if the matter complained of will bring the administration of justice into disrepute. There is a suggestion in O'Halloran that, where it is alleged that an issue has been decided in earlier proceedings, then, in order for there to be an abuse of process, at least one party to the earlier proceedings must be a party to the subsequent proceedings that are said to constitute the abuse, and that party must have failed on the issue that is sought to be relitigated. However, the authorities are also clear that the categories of abuse are not closed and the circumstances here are, at the least, unusual, if not unique. The authorities also recognise that the same issue may be litigated in different proceedings, even though there has been a determination on that issue in earlier proceedings. This will occur, for example, where both civil and criminal proceedings are brought in respect of the same conduct. It will also occur where some regulatory action has been taken against an individual and civil proceedings are also brought. In those proceedings, the prosecuting party will rarely be a party in both sets of litigation. Different standards of proof apply and there may be different onuses. The evidence may not be the same. It could not be said in those circumstances that there would be an affront to the due administration of justice if an issue determined in a civil proceeding also arises for determination in criminal proceedings involving a person who was a party to the civil proceedings."
This is one of the rare cases contemplated by her Honour where the prosecuting party in the Vexatious Proceedings Act application is (in substance) a party to the later proceedings. That is because Mr Mohareb has chosen to sue for defamation and the State finds itself a defendant to that action. However, for the reasons already explained, the issues raised by the defence are not the same issue as was determined by Schmidt J. As illustrated by the submission of Mr Richardson referred to above, even if the defamation was "that Mr Mohareb has frequently instituted or conducted proceedings that are vexatious within the meaning of the Vexatious Proceedings Act", the truth of that imputation would raise a different issue for determination in these proceedings because it would be determined as at a later point in time and by reference to a broader range of evidence.
I accept that the State should not be permitted to traverse individual findings made by Schmidt J concerning particular aspects of the litigation relied upon in the Vexatious Proceedings Act application. However, in determining the defence of truth, it will be open to the tribunal of fact to consider the effect of the evidence as a whole. If the evidence in the defamation action is not the same as the evidence before Schmidt J, it may well be open to reach conclusions adverse to Mr Mohareb based on evidence including events in respect of which her Honour found in favour of Mr Mohareb. That is a matter that will have to be determined at the trial.
For those reasons, I am not persuaded that the defences constitute an abuse of process. Accordingly, the application to have the defences struck out must be refused.

Discovery and interrogatories

The parties exchanged proposed categories for discovery and proposed interrogatories in accordance with the expectation of the practice note which governs proceedings in this list, Defamation List Practice Note SC CL 4.
As to the proposed categories for discovery, the defendants in both proceedings seek an order directing the plaintiff to produce a verified list of documents. The plaintiff contends that such an order is unnecessary because he has provided the parties and the Court with submissions titled "Responses and Objections to Discoveries" which include all relevant documents (see T27.30). It is clear that much work has gone into those submissions. The defendants wished only to have the discovery verified so as to have a measure of comfort that all documents falling within the categories have in fact been discovered. I am satisfied that it is appropriate to make that order. In light of the work Mr Mohareb has already done, there should be no difficulty in verifying the product of that work. Accordingly, I propose to direct the plaintiff to verify his discovery of the categories nominated.
As to the proposed interrogatories, Mr Mohareb again contends that adequate information has been provided in his reply filed in each proceeding and accordingly that interrogatories are not necessary. Mr Mohareb has filed four replies, one in reply to each defence. Each reply consists of up to 100 pages.
The defendants submit that those documents are argumentative and do not enable the defendants to tender admissions, which is the object of interrogatories.
The circumstances in which the Court should grant leave to a party to administer interrogatories are addressed in Part 22 of the Uniform Civil Procedure Rules 2005 (NSW) and clause 18(c) of the Practice Note. The test is whether the interrogatories are necessary for the resolution of the real issues in dispute in the proceedings.
An aspect of the test of necessity is the utility the interrogatories will have in serving the (necessary) object of deploying the court's resources efficiently. The potential utility of interrogatories was explained by Simpson J (as her Honour then was) in Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587 at [14]-[16], as follows: "[14] It may of use if I state the approach to the administration of interrogatories which I consider to be appropriate. In my opinion interrogatories can serve a very useful purpose, sometimes a purpose which is not, at the hearing, visible. The questions asked or the answers given may alert the interrogated party to an issue, or may deter persistence of either party in a course that party might otherwise have taken. In these cases, the benefits of the process of interrogation might not be immediately apparent to anybody other than the parties or their legal representatives. It may not be apparent to the judge hearing the case. [15] Further, in some cases a single interrogatory might obviate the need to call one witness, or a number of witnesses, or to produce documentary or other material, in order to establish a particular relevant fact. In this way, considerable costs and inconvenience might be saved. For these reasons, and despite the contrary views expressed by some others, I am of the view that the odium in which the interrogative process is held in some quarters is not justified by the process itself. It may be that it is justified by the misuse or abuse of a valuable piece of equipment in the armoury of litigators. [16] That I perceive considerable value in the availability of the process of interrogation is not to say that carte blanche should be given to parties wishing to interrogate, particularly where the volume of interrogatories is oppressive or potentially so. Nor is it to say that every interrogatory administered by one party to another will be required to be answered. To be useful, interrogatories must be properly directed to the issues identified after a proper process of pleading, and after full and proper particulars have been supplied. When this occurs interrogatories can do much to narrow the issues actually to be fought, and the scope of the evidence required to be adduced. But it is to be emphasised that this involves a sensible approach to the drafting of interrogatories. The drafter must have both eyes firmly fixed on the issues thrown up by the pleadings. To be useful, interrogatories must be specific to those issues."
I indicated my agreement with those remarks in Mooney v Nationwide News Pty Ltd (No 2) [2014] NSWSC 1933 at [18] and Creak v Channel Seven Sydney Pty Ltd [2017] NSWSC 213 at [22].
I am satisfied that, in the circumstances of the present case, where the plaintiff is self-represented and there are many factual issues, a large number of which may not be in dispute, the interrogatories prepared by the defendants will have considerable utility for the parties and the Court in narrowing the issues in dispute and facilitating the efficient use of court time. Accordingly, I propose to direct the plaintiff to answer the defendants' interrogatories.

Application to set aside subpoena issued by Fairfax

By notice of motion dated 14 August 2017, Mr Mohareb seeks to have set aside a subpoena issued by the Fairfax parties to the NSW Police Force. The Court has power to set aside a subpoena in whole or in part on the application of a party: Uniform Civil Procedure Rules 2005 (NSW), r 33.4.
The documents to be produced are specified in the schedule to the subpoena as follows: "All documents referring to or relating to [the plaintiff] including, but not limited to: documents referring to or relating to the plaintiff from the computerised operation policing system (COPS) or other police records, including but not limited to the plaintiff's criminal record; all documents referring or relating to the Offences [a defined term] including, but not limited to, records of any investigation into the Offences, police fact sheets, witness statements and the prosecution or police brief. All documents referring or relating to any complaints about the plaintiff made in the period 1 January 2013 to date by residents of Scotland Island or other persons including, but not limited to police reports, statements and video recordings of any incidents relating to any complaints."
Mr Mohareb submits that the issue of the subpoena amounts to an abuse of process because it will enable the defendants to rectify an impropriety in a way that will operate unfairly on him at trial. The submission was based on a suspicion that transpired to have no foundation. Mr Mohareb noted that the defences filed in the proceedings make reference to the plaintiff's criminal history. He contended that information of that nature is only obtainable by subpoena or court order. On that basis, he became suspicious that the defendants had obtained information concerning his prior convictions by some impropriety. If that information was improperly obtained, so the argument went, it would be inadmissible at trial; hence the subpoena would operate unfairly in that it would remove the proper sanction for the impropriety.
The defendants indicated that the information referred to in the defences was obtained by the ordinary process of application to the Local Court for access to the Court file in proceedings in which Mr Mohareb was a party (T39.1-11). In the circumstances, it is clear that Mr Mohareb's suspicion was misplaced.
There is clearly a legitimate forensic purpose for seeking to obtain access to any prior criminal history of Mr Mohareb. The imputations specified by Mr Mohareb in the Fairfax proceedings include the following imputations to which truth is pleaded (imputations 9(ix) and 11(viii)): "(1) The plaintiff is a criminal; OR (2) The plaintiff is reasonably suspected by police of being a criminal"
An application to amend those imputations is considered below.
In his notice of motion seeking to have the subpoena set aside, Mr Mohareb contended that the subpoena should be set aside on the following grounds:

The relevance of the material sought is "secondary and marginal" given that "less than 10% of the plaintiff's case" relates to the criminal imputations;
The matter complained of "was to the effect that the plaintiff's presence on Scotland Island ought to be of extreme concern to all residents, due to the fact that he is a volatile and unpredictable person who is known to the police in that he has a violent criminal record with particular regard to inflicting that violence on women and children". Thus, police records that relate to anything outside of that description are irrelevant;
Items (1) and (3) are so general and all-encompassing and as such it is a "phishing" exercise;
Information about the "offences" in Item (2) have already been obtained by way of an application filed previously by the defendants.

I am not persuaded that there is any basis for narrowing the scope of the subpoena, having regard to the terms of the imputations set out above. Material held by police falling short of any criminal record would potentially be relevant to the imputation that the plaintiff is reasonably suspected by police of being a criminal, as well as other imputations in the proceedings concerning events involving residents of Scotland Island with whom Mr Mohareb has come into conflict.
For those reasons, the application to have the subpoena set aside should be dismissed.

Application to amend pleadings in the Fairfax proceedings

Mr Mohareb seeks leave in the Fairfax proceedings to amend imputations 9(ix) and 11(viii) (which are identical). The existing imputations are: "(1) The plaintiff is a criminal; OR (2) The plaintiff is reasonably suspected by police of being a criminal."
In his affidavit affirmed 24 November 2017, Mr Mohareb contends: "The imputations at 9(ix) and at 11(viii) as they currently stand are inadequate and incorrect in that they plead a general imputation of criminality, when in order to accurately reflect what is stated in the matter complained of, they should plead a specific imputation of criminality, namely to the effect that: The Plaintiff is known to police for being a violent individual who constitutes (or very likely to constitute) a danger to the community in general and to women and children in particular Or alternatively, The Plaintiff is known to the police for his aggression and unpredictability which have lead him in the past to commit acts of physical violence against members of the community in general and against women and children in particular. My actual and real complaint about the relevant part of the publication is that it implied criminality of the kind evoked in the paragraph above and clearly not in relation to traffic offences or to any other kind of offences which are of virtually no relevant to the facts and circumstances which gave rise to the matter I complain of."
The defendants oppose leave to amend at this late stage. Mr Richardson noted that Mr Mohareb has already amended his pleadings a number of times, as set out below.
The original statement of claim was filed on 3 February 2017. It included imputation 9(ix), "that the plaintiff is a criminal or a suspected criminal in that he is known to police". In response to an objection as to the form of that imputation, Mr Mohareb's counsel at the time proposed (in written submissions dated 16 March 2017) to amend the imputation to its current form. The defendants did not object to the alternative form of the imputation ("that the plaintiff is reasonably suspected by police of being a criminal"). However, the imputation "that the plaintiff is a criminal" was objected to on the basis that it was not reasonably capable of arising. In a judgment published on 17 March 2017, I held that it was: Mohareb v Fairfax Media [2017] NSWSC 288 at [19].
On 19 April 2017, Mr Mohareb served a proposed amended statement of claim, purportedly in response to the rulings made on 17 March 2017. The proposed amendment included 9(ix) in its present form but also included imputations that had been struck out and imputations that were entirely new. I addressed the defendants' objections in a further judgment: Mohareb v Fairfax Media Publications Pty Ltd (No 2) [2017] NSWSC 546.
There was a further hearing concerning the manner in which the case was pleaded against the State which I determined in a third judgment: Mohareb v Fairfax Media Publications Pty Ltd (No 3) [2017] NSWSC 645.
On 2 June 2017, Mr Mohareb filed and served an amended statement of claim reflecting those various rulings. As pointed out by the defendants in their correspondence with Mr Mohareb, it is plain from that history that he elected to plead imputations of general criminality from the outset, retaining those imputations through the course of several amendments. Mr Mohareb resisted that suggestion, pointing to the fact that he was represented by Mr Rasmussen during that time. However, there is no reason why he should not be bound by the manner in which his counsel conducted the proceedings.
On 16 November 2017, the plaintiff wrote to the defendants seeking consent to further amendments to the imputations. Upon receiving the defendants' objections to the proposed imputations, the plaintiff proposed even further amendments. As noted by Mr Richardson, what was argued at the hearing was accordingly the fifth iteration of the imputations.
In light of that history, the defendants submitted that the amendment should be rejected out of hand in accordance with the considerations discussed in the decisions of the Court of Appeal in McMahon v John Fairfax [2010] NSWCA 308 at [25]-[35] (per Allsop P) and Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [23]-[32] (Spigelman CJ; Basten and Campbell JJA agreeing at [34] and [35] respectively). In my view, that is sufficient reason for rejecting the proposed new imputations. The defendants have filed their defences and prepared for further interlocutory steps on the strength of a pleading settled after three rounds of argument in the Defamation List. As it was put in McMahon, the point has been reached where enough is enough.
In any event, I accept, as submitted by the defendants, that the proposed new imputations are incapable of being carried by the matter complained of, for the following reasons.
The imputations are drawn from paragraph 18 of the article, which reproduces parts of a poster, as follows: "Headlined "Attention Island Residents" and accompanied by a photograph of Mr Mohareb, the poster said the Egyptian-born man is "a highly volatile individual, prone to manic outbursts…often abusive and threatening, particularly towards women and children" and "known to police"."
The defendants submitted that to attribute to the police specific knowledge that the plaintiff is a "violent individual" who "constitutes a danger to the community in general and to women and children in particular" or that the plaintiff's "aggression and unpredictability" lead him to commit "physical violence" could only arise from a strained and unreasonable reading of the matter complained of. I agree.

Orders

For those reasons, the orders I propose are: 1. The plaintiff's application to have the defences struck out is dismissed; 2. The defendants have leave to administer interrogatories to the plaintiff in the form of Annexure A of the affidavit of Timothy Senior affirmed on 23 November 2017; 3. Direct the plaintiff to answer those interrogatories within 6 weeks; 4. Direct the plaintiff to verify his discovery within 6 weeks; 5. The plaintiff's motion to set aside the subpoena issued by Fairfax Media Publications to the New South Wales Police Force is dismissed; 6. The plaintiff's application for leave to amend imputations 9(ix) and 11(viii) in the Fairfax Media proceedings (2017/35614) is refused; 7. Stand the proceedings over to 22 February 2019.

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 December 2018

At a glance

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Judgment (12 paragraphs)

Legislation Cited (4)

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