Mosslmani by his tutor Karout v DailyMail.com Australia Pty Ltd

The structure of this judgment

1. I shall commence by setting out my reasons for determining that imputations 4(ix) and 6(ix) are not reasonably capable of being conveyed which, given the concession Mr Rasmussen made which is noted above and my rulings on all other imputations pleaded for the first matter complained of in the Nationwide News proceedings, means that this cause of action will be struck out in its entirety.

The Nationwide News Pty Ltd publication: imputation 4(ix): "The plaintiff deserves to be an object of ridicule because of his mullet haircut"

1. Ms Mullins, for Nationwide News Pty Ltd, submitted that the inclusion of the word "deserves" in the imputation added an element of meaning to the imputation that the plaintiff was deserving of punishment (in the form of being held up to public ridicule), whereas the matter complained of restricted itself to reporting what had happened to the plaintiff and describing the responses of the plaintiff and his friends, and that the imputation is pitched too high to be conveyed.
2. Mr Rasmussen points to the following aspects of the matter complained of as giving rise to the imputation: 1. The reference to "breaks the internet" in the heading, which he claims has a pejorative meaning; 2. The references to the plaintiff having a "mullet" (headline, paragraphs 4,16, 23, 25, 27 and 30), particularly the reference in paragraph 3 to "stunned mullet"; 3. The fact that one of the memes shows "pin the tail on the mullet", which Paul Behman (who hosted the party at which this now-notorious photograph was taken) says he likes (paragraphs 16, 29 and 30); 4. The superimposing of the plaintiff's head on a film poster for "Joe Dirt", a character played by actor David Spade; and 5. The statement that the plaintiff did not intend to change his haircut, followed by a photograph of the plaintiff with the caption that he was "cropping [i.e. 'copping'] it on the chin".
3. Ms Mullins responds that this publication takes a celebratory, not a minatory, approach to the plaintiff's hairstyle. She particularly noted: 1. The term "breaks the internet" has the meaning "record-breaking" and is recognised as an achievement attained by what Ms Mullins called "the super-famous". Breaking the internet is recognised as an achievement by the International Academy of Digital Arts and Sciences, which awarded the "Break the Internet Award" to Kim Kardashian earlier this year for photographs of her bottom. 2. The plaintiff's mullet hairstyle is not derided, but described as "interesting" (paragraph 8) and as "one of a few other bold and bright haircuts at the party" (paragraph 15). To use the words of the matter complained of, the netizens who "got creative" and photo-shopped the plaintiff's mullet hairstyle onto world landmarks or animals did so in what is depicted as an admiring and/or humorous fashion, but in circumstances where they were not "jesting at their peril" (Radio 2UE Pty Ltd v Chesterton (2008) Aust Torts Reports 81-946; [2008] NSWCA 66 at [78] - [90], citing Berkoff v Burchill [1996] 4 All E R 1008; [1997] EMLR 139, where actor Steve Berkoff was referred to as "marginally better looking" than Frankenstein) in circumstances where it was capable of being inferred that the plaintiff deserved what he got. These memes were intended to be liked and circulated; Mr Behman, the party holder, is quoted as saying he "likes" the one where someone is "pinning the mullet" (paragraph 16). 3. This designation of internet attention as something positive rather than negative is further underlined when it is reported that the plaintiff's friends (called the "birthday boys") were "loving the attention", while the plaintiff, who had no intention of changing his hairstyle, was copping it "on the chin" (paragraphs 12 and 28). The plaintiff, according to the matter complained of, did not mind people he did not know making fun of his haircut, but was annoyed that people he knew were doing it.
4. I agree with Ms Mullins' submissions that the whole tenor of the matter complained of is that, to use the actual words of the publication, the plaintiff had become an "internet sensation" because of his "hair-larious" mullet hairstyle, which had resulted in "hilarious memes" and that the plaintiff's friends (and, by inference, the plaintiff, although he said he "couldn't care less") were "loving the attention". The highest that the matter complained of could be put is that the plaintiff's hairstyle had provoked a sensational internet response, including humorous memes, a meaning which Mr Rasmussen acknowledged could not amount to a defamatory act or condition because it was so trivial as to have no defamatory content.
5. In those circumstances, the imputation pleaded is not capable of being conveyed. In particular, no concept of the plaintiff having so conducted himself as to have "deserved" this criticism is identified or indeed identifiable.

Is the first matter complained of capable of conveying any defamatory imputations?

1. If this imputation is not reasonably capable of being conveyed, is any imputation (apart from the imputations of stupidity, which is separately considered below, and which I have struck out for the reasons there stated) reasonably capable of arising? Mr Rasmussen cannot point to any imputations of defamatory meaning other than the two sets of imputations which he has attempted, unsuccessfully, to plead. If all of these are struck out, and Mr Rasmussen cannot formulate any more, what should happen next?
2. Ms Mullins submitted that the first matter complained of should be struck out in its entirety, as not being capable of giving rise to any imputation defamatory of the plaintiff. This submission is not put on the basis of proportionality (Jameel v Wall Street Journal Europe [2004] EMLR 6 at [10] and [14]), but because, although some of the comments about the plaintiff put him in a "hair-larious" light (to quote the matter complained of). While the matter complained of publishes memes which portray the plaintiff in a humorous light, any defamatory meaning drawn from the publication as a whole would be so slight as to be de minimis.
3. A similar example of such a publication may be found in Ecclestone v Telegraph Media Pty Ltd [2009] EWHC 2779, where the plaintiff commenced proceedings for defamation for a statement attributed to her that "I am not a veggie and I don't have much time for people like the McCartneys and Annie Lennox [who are]".
4. Sharp J, in the course of a summary application as to absence of defamatory meaning (or alternatively a meaning falling below the proportionality threshold) stated that the court should exercise great caution before concluding that words were incapable of a defamatory meaning, citing Berkoff v Burchill at 143). However, her Honour considered that it was hard to distil any meaning defamatory of the plaintiff from a reference to her allegedly saying she was not a vegetarian, or that she did not have much time for public figures who were. Even if a public statement about such style icons as the McCartneys which was "not sycophantic" might be "regarded as a 'faux pas'", her Honour observed, that did not make what was said capable of giving rise to an imputation defamatory of the plaintiff (at [13]).
5. Sharp J concluded: "Applying the high threshold to the instant case, the words complained of were not capable of bearing any meaning defamatory of the claimant. The ordinary reasonable reader would see the sentence complained of in the context in which it was used, as nothing more than the expression of a permissible view about an issue and matters on which some people hold strong opinions. All that was being said was the claimant was not a vegetarian, and did not have much time for people who were; the ordinary reasonable reader would (or could for that purpose) think that anything other than unremarkable, let alone think the less of the claimant as a result."
6. Expression of views concerning hairstyle, or trends such as vegetarianism, or of dislike for a celebrity are insufficient, without more, of imputing actionable meanings unless there is some defamatory act or condition capable of being conveyed, in circumstances where the absence of darker meanings is "palpable": Monte v Mirror Newspapers Pty Ltd (Supreme Court of New South Wales, Hunt J, 2 November 1979, unreported), citing Somers v Fairfax & Anor (1879) 2 SCR (NS) 140 at 144).
7. That is the case here. As Mr Rasmussen acknowledges he cannot plead further imputations, there is no point in granting further leave to replead, especially as this would be his third attempt.
8. Paragraphs 3 - 4A of the plaintiff's proceedings relating to the first matter complained of are accordingly struck out and the plaintiff's action in relation to the first matter complained of is dismissed with costs.

Nationwide News Pty Ltd: imputation 6(ix)

1. The plaintiff also pleaded this imputation in relation to the second matter complained of. I have previously held that the plaintiff is entitled to plead an imputation that he is a ridiculous person because he wears a shameful haircut so, unlike the first matter complained of, this is not the sole remaining imputation.
2. The relevant passages of the matter complained of are set out in Ms Mullins' written submissions at paragraphs 36 and 38, and I shall not repeat them. I accept her submission that these passages celebrate the online popularity of the plaintiff's mullet hairstyle, while expressing the view that the mullet is not an attractive hairstyle, and showing celebrity mullets in a "hairy hall of shame".
3. Mr Rasmussen could not point to any passage of the second matter complained of saying that the plaintiff "deserved" public ridicule or comment of this kind. All that the article says is that the plaintiff is ridiculous because he has a shameful mullet haircut, and that is encapsulated in imputation (viii).
4. Imputation (ix) is thus not reasonably capable of being conveyed. This means that the only surviving imputation for this publication is imputation (viii).
5. I note Ms Mullins' submissions as to the form problems arising from an imputation that the plaintiff "deserved" such treatment, as well as the failure of imputations (viii) and (ix) to differ in substance. As I have found that the imputation is not reasonably capable of being conveyed, it is not necessary to deal with these further, beyond noting that if the imputations did not differ in substance I could not have struck out imputation (ix) on the basis that it was not reasonably capable of being conveyed.

Imputations that "the plaintiff is a stupid person"

1. I next set out my reasons for holding, in the course of argument, that an imputation that "the plaintiff is a stupid person" is not capable of arising in any of the publications in any of the three proceedings. That meaning is asserted to arise from the fact that "mullet" has an accepted slang meaning of "stupid".

"Mullet" and "stupid"

1. The plaintiff initially sought to plead these imputations on two bases 1. As a natural and ordinary meaning "mullet" means "stupid", or alternatively 2. "Mullet" means "stupid" by reason of true innuendo.
2. The defendants submitted that the true innuendo pleading was misconceived as the "stupid" innuendo failed the three tests set out by Simpson J in Nassif v Nationwide News Pty Ltd [2000] NSWSC 269 at [13].
3. In the course of argument both parties abandoned these alarmingly technical arguments. The defendants conceded that the Macquarie Dictionary of Slang definition of "mullet" as "stupid" meant that "stupid" was capable of arising in the natural and ordinary meaning of the word, and the plaintiff conceded that, if this was so, that was the end of the true innuendo imputations.
4. To err on the side of caution, I have nevertheless struck the true innuendo imputations, in case this issue arises again, and note as my reason for doing so that the dictionary meaning renders any need for a true innuendo meaning unnecessary (cf Allsop v Church of England Newspapers [1972] 2 QB 161 ("bent"); Thaarup v Hulton Press (1943) 169 LT 309 ("pansy")).
5. Whether one or more of the references to "mullet" in each of the matters complained of is reasonably capable of giving rise to an imputation that the plaintiff is stupid will depend upon a careful analysis of each publication, independently of the others.
6. I first note that "stupid" is agreed to have the definition of being a person who lacks intelligence. "Mullet" has three separate meanings, according to the Macquarie Dictionary of Slang. The first is "stupid", the second is "stunned" ("stunned mullet") and the third is its use in the epithet "get a mullet up you", which means "piss off". It is, however, important to note that this dictionary also has a separate entry for the term "mullet haircut" for the particular haircut style adopted by the plaintiff.
7. The question really is whether the references to "mullet" in each publication are reasonably capable of imputing stupidity as opposed to, or in addition to, referring to the plaintiff's hairstyle.

The Nationwide News Pty Ltd Imputations: 4(x), 4A(i), 6(x) and 6A(i): The plaintiff is a stupid person

1. My reasons for holding that these imputations were not reasonably capable of being conveyed in each of the Nationwide News Pty Ltd imputations (hereafter referred to as the Daily Telegraph publications) are as follows.

The first matter complained of: imputations 4(x) and 4A(i)

1. There are 30 references to the plaintiff's hairstyle in terms of photographs and references, each of which is carefully set out in Ms Mullins' helpful written submissions, which I will not set out again.
2. Each of these references (save for the caption in paragraph 3) is either a photograph of the plaintiff's hairstyle or a reference to it as a mullet hairstyle, as opposed to a reference to the plaintiff himself. The word "mullet" appears in the headline and paragraphs 3, 4, 14, 16, 25, 27 and 30 and in each case it is used in the context of the plaintiff's hairstyle.
3. Mr Rasmussen pointed to the use of the term "stunned mullet" in the caption at paragraph 3. However, that caption clearly captures, as does the heading, that the plaintiff's international fame has come as a complete and unexpected surprise and that he is "stunned" in this sense of the word. As the Macquarie dictionary definition of "stunned mullet" shows, the meaning of being "stunned" or dumbfounded is capable of being attributed to the phrase "stunned mullet", but this is an entirely different meaning to being "stupid", and carefully noted as such in the dictionary.
4. Mr Rasmussen next pointed to the picture of the donkey in the "pin the tail on the mullet" (paragraphs 16 and 30), submitting that the reference to donkey amounted to "stupid", as did the use of the plaintiff's hair as a horse's tail.
5. Whether the image of a donkey conveys an imputation of stupidity, or indeed any imputation at all, will depend upon analysis of the matter complained of (Massey v New Zealand Times Co (Ltd) (1911) 30 NZLR 929). These memes of a horse and donkey tail are two of a series of photo-shopped pictures placing the plaintiff's profile and hairstyle onto a variety of items, including Mount Rushmore and a poster for a film character played by actor David Spade. To attempt to draw an imputation of stupidity from one or more of these when they are all humorous adaptations of the plaintiff's hairstyles with no deeper meaning is an exercise in futility, and no imputation to the effect of that pleaded by the plaintiff is reasonably capable of being conveyed. I am satisfied that each time the word "mullet" appears it relates to the plaintiff's hairstyle, and that the only play on words for another meaning of "mullet" is the "stunned mullet", which refers to the complete surprise the plaintiff felt at his unlooked-for international fame.
6. I also note the defendant's submissions as to the form of the imputation, namely that the vagueness of the word "stupid" invites the question "stupid in what way?" (Vogel v Felice 2005 WL 675837). The difficulty in answering that question is that it is hard to see how an imputation of stupidity can arise at all, and the question of the form of the imputation is thus impossible to determine.

The second matter complained of: imputations 6(x) and 6A(i)

1. As to capacity, the plaintiff initially relied only upon one sentence in the matter complained of, namely paragraph 6, which says: "Meet Ziggy 'the Mullet' Mosslmani, the Sydney teenager whose bizarre hairdo has caused a global internet storm." In the context of the publication, and particularly the adjoining photograph of the plaintiff's mullet hairdo, this is clearly a reference to the plaintiff's hairstyle.
2. Mr Rasmussen then sought to refer to other uses of the word "mullet" in this publication, such as the photographs of Mel Gibson. Jason Donovan, John Farnham, Billy Ray Cyrus and John Bon Jovi as members of the "hairy hall of shame" with "history's best mullets". That does not impute that these celebrities (or the plaintiff) are stupid, but that their hairstyles expose them to ridicule, an imputation the plaintiff has already pleaded.
3. Imputations that the plaintiff is "stupid" are not reasonably capable of being conveyed in this publication either in the natural and ordinary meaning or by true innuendo.

The Daily Mail publication: imputations 3(ix) and 3A(i)

1. The word "mullet" occurs three times, in paragraphs 4 ("impressive mullet"), 16 ("super mullet") and 17 ("pin the mullet", referring to the meme set out at paragraphs 27 and 28). On each occasion it clearly refers to the plaintiff's haircut. There are interspersed with four references to the plaintiff's "haircut".
2. Mr Rasmussen sought to argue that the "pin the donkey" meme imputed that the plaintiff was a donkey and thus stupid. For the same reasons as set out above in relation to the Daily Telegraph publications, I consider any such imputation to be far-fetched and fanciful, and not reasonably capable of being conveyed other than to a person avid for scandal.
3. This imputation, in its natural and ordinary meaning or by true innuendo, is not reasonably capable of being conveyed.

The Australian Radio Network Pty Ltd imputations

1. I set out my reasons for holding that an imputation "the plaintiff is a stupid person" is not reasonably capable of being conveyed in any of these publications, again both in the natural and ordinary meaning and by reason of true innuendo.

The first matter complained of: imputations 3(x) and 3A(i)

1. While the internet is described in the heading as going "crazy", and the author of the matter complained of says he cannot think of anything "clever" to say, there is nothing in this publication to suggest that the plaintiff lacks intelligence. The reference to "neigh way"" (for "no way") and the horse and donkey memes are a reference to his luxurious pony tail, not to his lack of mental acuity.
2. These imputations are not reasonably capable of being conveyed.

The second matter complained of" imputations 5(x) and 5A(i)

1. This publication is in very similar terms to the first matter complained of and, for the same reasons, I make the same ruling.

The third matter complained of: imputation 7A(i)

1. For reasons which were never clearly explained to me, the plaintiff only pleaded this imputation as a true innuendo and not in its natural and ordinary meaning. Although all the true innuendo imputations of stupidity were withdrawn during argument, I formally note that both imputation 7A(i) and any imputation pleaded in the natural and ordinary meaning are not reasonably capable of being conveyed.

Concluding remarks

1. This is the second imputations argument. In addition, the plaintiff has changed the imputations pleaded on several occasions before and during the hearing.
2. The plaintiff has been wholly unsuccessful in all three proceedings, and has suffered the loss of the first matter complained of in the Nationwide News Pty Ltd proceedings.
3. I accordingly order the plaintiff to pay the defendants' costs in all three proceedings in relation to this second imputations argument. As the first matter complained of in the Nationwide News Pty Ltd is now struck out, those proceedings are at an end, and my costs order in relation to this publication should, on assessment, be taken to include the costs of the plaintiff's proceedings from commencement and not just the costs of the imputations argument.

Proceedings 2016/210991 1. Imputations 3(viii), 3(ix) and 3A(i) are not reasonably capable of being conveyed and are struck out. 2. Plaintiff is to pay the defendant's costs. 3. Further Amended Statement of Claim is to be filed and served by Thursday 15 December 2016 (including the inserting of the word "mullet" in the agreed imputations). 4. Defence by Wednesday 8 February 2017. 5. Matter listed on for directions on Thursday 9 February 2017 in the Defamation List.

Proceedings 2016/210996 1. Imputations 4(x) and 4A(i) are not reasonably capable of being conveyed and are struck out. 2. Imputations 6(x) and 6A(i) are not reasonably capable of being conveyed and are struck out. 3. Imputations 4(ix) and 6(ix) are not reasonably capable of being conveyed and are struck out. 4. Paragraphs 3 - 4A of the statement of claim are struck out. 5. Plaintiff is to pay the defendant's costs. 6. Defendant's reply submissions by 5:00pm Tuesday 6 December 2016. 7. Matter listed on for directions on Thursday 9 February 2017 in the Defamation List.

Proceedings 2016/211033 1. Imputations 3(ix), 3(x) and 3A(i) are not reasonably capable of being conveyed and are struck out. 2. Imputations 5(ix), 5(x) and 5A(i) are not reasonably capable of being conveyed and are struck out. 3. Imputations 7(viii) and 7A(i) are not reasonably capable of being conveyed and are struck out. 4. Plaintiff is to pay the defendant's costs. 5. Further Amended Statement of Claim is to be filed and served by Thursday 15 December 2016 (including the inserting of the word "mullet" in the agreed imputations). 6. Defence by Wednesday 8 February 2017. 7. Matter listed on for directions on Thursday 9 February 2017 in the Defamation List.

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: 15 December 2016