Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828)
Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828)
Source
Original judgment source is linked above.
Catchwords
Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828)Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828)
Judgment (4 paragraphs)
[1]
Judgment
The plaintiff, a minor whose tutor brings these proceedings on his behalf, has commenced three actions for defamation in the District Court of New South Wales. The claim the subject of this judgment is a publication in the Daily Telegraph which I have determined gives rise to one imputation, namely that "the plaintiff is a ridiculous person because he wears a shameful haircut" (Mosslmani by his tutor Karout v DailyMail.com Australia Pty Ltd (ACN 166 912 465); Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828); Mosslmani by his tutor Karout v Australian Radio Network Pty Ltd (ACN 065 986 987) [2016] NSWDC 264; Mosslmani by his tutor Karout v DailyMail.com Australia Pty Ltd (ACN 166 912 465); Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828); Mosslmani by his tutor Karout v Australian Radio Network Pty Ltd (ACN 065 986 987) (No. 2) [2016] NSWDC 357). Nationwide News Pty Ltd, the defendant, pleads defences of honest opinion and justification.
The structure of the claim before the court in this action differs from the other two defamation proceedings in that only one imputation has survived a ruling on imputations and that no jury has been requisitioned by the defendant. Unless the plaintiff requisitions a jury, this means, in practical terms, that the plaintiff's proceedings against Nationwide News Pty Ltd are unlikely to be run at the same time as the other two jury trials, which may well require the plaintiff and his witnesses giving evidence separately for the purpose of these proceedings. That evidence will almost certainly include witnesses of the same tender age as the plaintiff (such as other persons present at the 16 year-old's birthday party at which the photographs of the plaintiff was taken), as well as evidence concerning the asserted impact upon his schooling following publication of the matter complained of.
The application which came before the court today for argument is the defendant's application for discovery in relation to a series of categories challenged by the plaintiff. Counsel for the plaintiff sought to rely, in opposing this application, to the principles set out in Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326, where Brereton J made orders that classes of documents for discovery should be specified by the relevance to one or more facts in issue, by description of the nature of the documents or such other factor as the court may be "relevant to a fact in issue" (r 21.1(2) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR")).
However, the basis upon which those orders were made by Brereton J was that the discovery issue be postponed until after witness statements, which would identify those issues, had been exchanged. No such order has been made in these proceedings. This led me to inquire whether the parties had considered an exchange of witness statements, given the plaintiff's age and the evidence likely to be led. My first, and main, reason for making this inquiry is that the plaintiff and many of his witnesses are still likely to be minors even at the time of trial.
Defamation actions by minors are rare. In Shea v News Ltd (No 2) [2016] WASC 146, where the plaintiffs were 17 and 15 years at the time of publication, Kenneth Martin J considered that the making of an order for evidence by way of statements was advisable where this would assist in the effective conduct of the proceedings.
His Honour first noted the special difficulties arising when children bring actions for defamation:
"[2] There is very little case authority dealing with the reputations of children or youths. Such persons, necessarily, have not had the opportunity to develop adult reputations capable of being damaged by a defamatory publication. Nevertheless, it seems well established that the cause of action under the tort of defamation is open for a plaintiff who is not an adult. Even, it would seem, a very young child can be defamed. In 2010 the Irish Circuit Court approved a settlement offer by a supermarket to a five-year-old boy. The boy had sued the store for defamation, false imprisonment and assault on the basis he had been falsely accused of stealing a packet of crisps (see http://www.bbc.com/news/world-europe-10785859). Moreover, the arrival of the internet and associated phenomena such as social networking and cyber-bullying now pose contemporary challenges as to the reputational harm that young persons may suffer from internet publications - see, for example, a decision by the Supreme Court of Canada in AB v Bragg Communications Inc [2012] SCC 46; [2012] 2 SCR 567."
Kenneth Martin J's remarks are particularly applicable to the proceedings before me, which relate to the social networking background and the reputational harm issues that Kenneth Martin J has referred to as relevant factors. His Honour went on to note (at [40] ff) his reasons for making orders for witness statements of an informal nature, in circumstances where the potential for problems with the evidence at trial to be identified and dealt with.
An additional factor in this case, and one which Ms Mullins emphasised, is that these proceedings have attracted extensive international coverage, to the extent that the plaintiff says he can no longer go to school and must have home schooling. The precise ambit of discovery in relation to this aspect of the claim is hard to identify, in part because these particulars were given from the Bar table and are not contained in a pleading as some form of special damage (as is occasionally seen for injury to health: Chu Siu Kuk Yuen, Jessie v Apple Daily Ltd [2002] 1 HKLRD 1; Clough v Mirror Newspapers Pty Ltd (Supreme Court of New South Wales, Clarke J, 28 November 1983)).
A third factor is efficient case management of these proceedings for trial in circumstances where statements could shorten the hearing time and enable "clarifications and adjustments" of the kind referred to by Kenneth Martin J in Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117 at [177].
Mr Rasmussen opposed the imposition of an order for statements, submitting that defamation actions were different from all other actions, not only because the finders of fact had, until recently, always been a jury, but because this action did not relate to what he called "some dry Equity suit", but to hurt to feelings. The plaintiff's opportunity to give evidence from the witness box of his hurt to feelings was an important part of the damages claim, and the opportunity to give this evidence orally would be lost to him in circumstances where this could result in his damages being reduced and his credibility not being properly established, in that his oral evidence would consist largely of cross-examination.
Ms Mullins supported the idea of witness statements, but considered that these should be formal affidavits, so that the parties and their witnesses appreciated the seriousness of the taking of an oath.
After hearing from both parties, and inviting them to take more time to consider whether witness statements/affidavits are appropriate (which they refused), I made orders for the exchange of witness statements (as opposed to affidavits) of the kind made by Kenneth Martin J in Shea v News Ltd (No 2) which, depending upon the approach of the trial judge, should give Mr Rasmussen a degree of flexibility in relation to the leading of oral evidence in chief. These are my reasons for making those orders.
[2]
Witness statements in defamation proceedings
Until amendments to the repealed Defamation Act 1974 (NSW) restricting the role of the jury to the consideration of imputations, trial by jury was the rule rather than the exception in New South Wales until the mid-1990s not only for defamation but for many other causes of action, notably personal injury. Case management concepts at that particular time were at best of an informal and ad hoc nature, until the New South Wales Parliament released its landmark study of delays and inefficiencies in litigation on 1 November 1996 ("Dealing with Court Delays in New South Wales", Honor Figgis, NSW Parliamentary Library). In his Introduction to the Case Management Handbook (jointly published by the Law Council of Australia and the Federal Court of Australia in 2011), John Sheahan QC described the gradual development of case management principles over the past 35 years, noting that these were still "far from settled".
A central part of that case management strategy was the introduction of the Civil Procedure Act 2005 (NSW), which gives case managing and trial judges power to make case management orders aimed at the just, quick and cheap resolution of proceedings. These changes in case management coincided with the decline of the defamation jury trial and defamation case management today differs greatly from that applicable at the time that the repealed legislation was in force.
One of those changes has been the use of witness statements in defamation proceedings where it is considered appropriate. The use of such statements has been seen as appropriate in certain circumstances, such as where justification is an issue (Moran v Schwartz Publishing Pty Ltd (No 6) [2016] WASC 168; Findlay v Grimmer [2014] WASC 228), or the matter complained of is a slander (Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274), whether the trial is before a jury or a judge sitting alone. They can reduce the need for other interlocutory steps, such as wide-ranging discovery and interrogatories (Howes v ACP Magazines Ltd [2013] NSWSC 1836) and where there has been a late amendment, even under the repealed legislation (Tedeschi v Franklins Ltd (Supreme Court of New South Wales, Levine J, 23 September 1994, unreported)).
Some judges have preferred affidavits to be provided but others, such as Kenneth Martin J in Kingsfield Holdings Pty Ltd v Rutherford, have preferred the intermediate course of exchanging statements which are not formal proofs while still permitting the parties to give their evidence in chief at the trial.
The advantages of witness statements in these proceedings are considerable. Not only will a long argument about discovery be reduced or avoided altogether, but it will make the trial shorter and more manageable, in circumstances where the impact of this publication on the plaintiff is asserted to have been so severe that he has had to stop attending school, and where most of the witnesses he calls will also be minors.
Although not forming part of my reasons, I should note that, in my capacity as the List Judge for the weekly Infants Settlement List since 2003, I have had many opportunities to read expert reports concerning the impact upon children of litigation. The Civil Procedure Act 2005 (NSW) sets out a series of provisions relating to the court's supervisory jurisdiction in relation to those minors and persons suffering from incapacity who are parties to proceedings. Those obligations, in my view, may at times extend beyond the approval of litigation settlements and to the conduct of their litigation in other circumstances where appropriate. While I am not prepared to say that these obligations extend to the protection of children and youths giving evidence and conducting proceedings, courts should be sensitive to the needs of all vulnerable persons whose health and wellbeing may be affected by the stress of court proceedings.
[3]
Orders
1. Pursuant to s 57 Civil Procedure Act 2005 (NSW), direct that the evidence at trial in these proceedings is to proceed by way of statements.
2. Plaintiff to serve statements by 20 July 2017.
3. Defendant to serve statements by 17 August 2017.
4. Plaintiff's statements in reply by 31 August 2017.
5. Matter listed for further directions on Thursday 14 September 2017 in the Defamation List.
6. The defendant's application for further and better discovery is deferred until further order.
7. Costs reserved.
[4]
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 May 2017