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[2014] NSWDC 237
District Court of NSW
2014-11-28
Moffitt P
Original judgment source is linked above.
Judgment 1These are reasons for rulings on the form and capacity of imputations pleaded, in accordance with my obligation to provide reasons for such orders: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWSC 11. 2The plaintiff, a priest of the Coptic Orthodox Church, brings proceedings for defamation for two publications by the Arabic language newspaper "Egypt today". 3The nature of the rulings requires the setting out of each of the matters complained of in full. The text of the first matter complained of, accepting the somewhat idiosyncratic numbering and grammar, is as follows: (1) We request clarification from the Diocese of Sydney (2) We notify the valued readers that everything published on this page is either documented or copied from other sites. Our opinion, however, appears between brackets starting with the word [Comment...] (3) Firstly, we require clarification from the Diocese of Sydney... (4) On 27/2/2014 Father Georgious Ramandious was again attending one of the protestant [sic] meetings. The only thing left for him it to take his Coptic Orthodoc congregation along to those meetings. (4A) We would then close down our churches or sell them; we would never need to purchase churches or donate for their continuity in our Coptic community, since priests attend protestant churches. The priest no longer needs to hold the Godly mass handed down from our early fathers; chanting two or three hymns would suffice. (5) Didn't Jesus Christ say, "Woe to the person through whom stumbles come"? If you caused people to stumble, what would you do to implement Jesus [sic] commandment? (5A) The recklessness by the diocese and the irresponsible behaviours constitute the start of disintegration and collapse of the Coptic Church in Sydney-Australia [sic]. (6) Secondly: we require clarification from the Diocese of Sydney regarding an article published in Al-Ahram Al Jadid Newspaper on 17/2/2014. We mean the article entitled "Sydney Copts Request Pope Tawadros Detain their Bishop in Cairo". The valued readers can access the full article online. The article discussed many issues in detail, in part the following: 1-The reconciliation conference the Bishop attended with terrorist Muslim Borthers Association that has strong ties with Hamas organisation in Gaza and Sinai. 2-Ordaining Father Youssef, his relative as a priest without the knowledge of the congregations of Saint Mary's and Saint Mina's Cathedral. 3-The second file concerns the three Coptic schools the Bishop would like to regain management over; they appeal to him because of financial gains and government assistance bestowed on them. The schools are still new and he presently keeps trying to achieve his goal." 4The imputations pleaded to arise from this publication are: (a)Imputation 6(a): The plaintiff is a traitor to the Coptic Orthodox Church because he attended and supported the rival Protestant Church. According to the letter from the solicitors for the defendants of 4 November 2014, this imputation is not challenged; the complaint is that it does not differ in substance from imputation 6(c); (b)Imputation 6(b): The plaintiff proposes to close down and destroy the Coptic Orthodox Church. The defendants challenge form (particularly "proposes") and capacity; (c)Imputation 6(c): The plaintiff is disloyal.The defendants submit this imputation does not differ in substance from imputation 6(a); (d)Imputation 6(d): The plaintiff should be defrocked. The defendants complain this is rhetorical and does not differ in substance from imputation 6(f); (e)Imputation 6(e): The plaintiff is a disgrace to the Coptic Orthodox Church. The defendants challenge form and capacity; (f)Imputation 6(f): The plaintiff should be excommunicated.The defendants raise the same objections as to imputation 6(d). 5The text of the second matter complained of is as follows: (1) A Plan to convert the Coptic Church in [sic] (2) Egypt to a Protestant Church within 20 years [sic] (2C) Where are you Father Georgious? (3) Protestants don't have priesthood. They reject the rest of the sacraments and the rest of the Orthodox doctrine. (4) They have also removed Holy Scriptures that were cited in the Jewish Old Testament and acknowledged by all Catholic and Orthodox churches including the Coptic Church. Those are Tobit, Judith, Joshua son of Sirach, Baruch, Book of Wisdom, First Maccabees, Second Maccabees; they also removed the rest of Daniel's book. They printed the Bible excluding those scriptures. (5) Jesus Christ himself spoke to Jews during the Feast of Dedication (John 10:22 - 25) "at that time the Feast of Dedication took place at Jerusalem; it was winter." (6) The strange thing is that the Feast of Dedication was not at all mentioned in any books of the Bible, but, it was mentioned in one of the books Protestants removed; it was the book of the First Maccabees (1st Maccabees 4:59). The Maccabees were the first to celebrate the Feast of Dedication, which meant the renovation and reconstruction of the Temple. They removed the idols' sanctuary created by the Seleucids to replace the Temple of Solomon. Having defeated the Seleucids, they renovated the Temple and resumed offering sacrifices. This was the Feast Jesus Christ took part in at the Temple; to date, it is regarded by the Jewish people as a popular national celebration. (7) The Feast did not exist before the Maccabees; however, since Jesus Christ celebrated it, the First and Second Maccabees books shall be considerered inspired scriptures, even though they were subsequently omitted by the Protestants. (8) The Four Gospel writers quoted some verses from the other canonical scriptures omitted by Protestants, including (Tobit 4:10, 7, 11) (compare Luke 14: 14, 14). Scores of other quotes used by the disciples and apostles of Christ in the Bible were omitted by Protestants. If the disciples did not believe in those scriptures, why would they mention and cite them in the New Testament? This is proof that Protestantism is against Christian faith. (9) [Protestantism is relatively a [sic] new sect (they omitted the books 16 centuries after the beginning of Christianity)!!]. By doing this they fell under the weight of the verse, "if anyone takes away from the words of the book of this prophecy, God will take away his part from the tree of life and from the Holy City, which are written in this book." (Revelation 22:19). (10) I would have liked Father Georgious Ramandious to be one of St Mark's lion cubs, strongly defending the Orthodox faith with an article on the subject. However, he let the attackers attack the church's doctrine. He visited their churches wearing his religious Coptic garb, not caring what impact his visit would leave on the ignorant and lay Coptic people. (11) Father Georgious did this while knowing that Protestants don't believe in the priesthood, the laying of hands and the Orthodox doctrine as a whole. (12) If he did not know, this would have been a serious problem; being a priest and not knowing the simplest of conflicts between us and them. (13) There is also another problem, for he attended protestant meetings in Blacktown, meaning that he encouraged people not from his church to go to the Protestants, because there are some lay and ignorant Copts who are indecisive in their faith; when they attend a Coptic mass, they say, "We are Orthodox", and again they say, "We are Protestants" when they attend the Protestant one. (13A) They are like chameleons; they change colour and camouflage to blend in with their surroundings. Others proclaim openly that they are Orthodox, despite being Protestants in their heart and soul. (14) Biased rumours that aim to destroy the Coptic Church were circulated. Those rumours spread that his Holiness, Pope Tawadros, teamed up with the Protestants. In fact, this is not true, it's a rumour spread by Protestants in our church to draw the public to their church. They are a fifth column that crept into our midst. (14A) We respond with the Apostle Paul [sic] words in his epistle to the Galatians, where he said: "But though we, or an angel from heaven, should preach unto you any gospel other than that which we preached unto you, let him be anathema". (Galatians 1:8: the New King James Version). He then repeated the same expression, saying: "As we have said before, so say I now again, if any man preacheth unto you any gospel other than that which ye received, let him be anathema (denounced)". Those Protestants preach to us other than what we received from the fathers, so what are they then? (15) I heard the rumour claiming that the Pople came to an agreement with Protestants from a person I sent with a letter to Bishop Daniel regarding Father Georgious. (16) We ask Bishop Daniel, Father Georgious and others from the fifth column to show us either a written order issued by the Pope or a signed decision of Pope Tawadros to unite the Church with Protestants, or even a decision by the Holy Synod to unite in faith with Protestants. (17) Moreover, it would be preposterous for me to pray at a mosque if I see the Pope attending the Azhar for a matter. We raise the question here, "Has the Diocese of Sydney United with the Protestants without our knowledge, like it reconciled with the Muslim Brothers?" (18) The Coptic Church is bleeding heavily. I hope Pope Tawadros personally responsible for what is happening and will happen, because he insisted on Bishop Daniel's return to Sydney, and disregarded His Holiness Pope Shenouda's wisdom in keeping him away. (19) Egyptians were able to topple down Mubarak the dictator, and Mursi and terrorist who ruined Egypt and the lives of Egyptians. (20) So, how long will Bishop Daniel remain in his position to manage the Diocese of Sydney in a twisted manner on financial and spiritual levels? (21) We requested clarification from the Diocese of Sydney regarding the money that was collected outside the churches and where it was. (22) We also requested clarification regarding Priest Georgiouss [sic] regular attendance at Protestant churches and requested investigating his knowledge on the doctrine. Was he inclined to Protestants? We suggested discussing with him the extent of his knowledge of the orthodox doctrine!! And other questions that we do not know the answer to. (23) However, it appears that the Diocese is feigning sleep and overlooking breaches committed by that priest, despite Bishop Daniel previously attacking other priests without legitimate reasons. We wonder why discrimination was shown in the treatment of this priest in comparison to other priests. (24) Bishop Bakhomious stopped Pries Iskandar Andrawos in Egypt because he always attended Protestant churches. Howeve, what did Bishop Daniel do in regards [sic] to Priest Georgious who always attends Protestant churches in Australia? O Diocese, we want an answer! (25) The Diocese probably kept quiet and did not issue a statement for the following reasons: the Diocese might have been ashamed of the behaviour of that priest; it might have been protecting him; he might have had more authority than the Diocese; or maybe the Diocese accepted his behaviour and encouraged him. The readers might be able to add more reasons that did not cross my mind. 2//4/2014. (26) Loose thinking in Sydney Diocese.The Diocese of Sydney has fallen into loose thinking saying that there is no difference between Orthodox and Protestant. This thinking spreads among those entrusted with the service and servants at Sunday Schools; its contagion even affected some priests. (2A) [sic] His Grace Bishoy Exposes the Protestant Plan...We are now, in the Diocese of Sydney, witnessing the practical execution of a plan, mentioned previously by his Grace Bishop Bishoy, while he was the Secretary and the Head of the Doctrine in the Holy Synod in 2009. The plan is to convert the Orthodoc Church in Egypt to a Protestant Church within 20 years. The Bishop declared that the plan aims primarily to convert Orthodox to Protestants. The Holy Sydnod's Secretary disclosed that some priests have adopted the Protestant ideology. Egypt witnessed clandestine meetings and movements where activists published books with their personal interpretations of the Gospel. Interpretations of the disciples, Nicaean Fathers or the Fathers of the early Church were not cited. (2B) The annual Conference of Doctrine Confirmation in Egypt witnessed a plan to invade the Orthodox Church and convert it to a Protestant Church that year. His Grace pointed out that this plan would not be executed by foreign hands but by insiders. His Grace Bishoy revealed that some priests have adopted Protestant ideology. He indicated that the Church took ecumenical action against a priest; that he was banned from teaching because he refused to comply after we explained to him the dangers of the Anglican ideology. (27) A General and Important WarningThe newspaper allows writers full freedom to express their opinions, therefore contents [sic] of published articles don't necessarily reflect the newspaper's opinion. They primarily express the opinions of their authors. The newspaper fully respects the opinions and counter opinions.Handwritten words: Even when lying, slandering and abusing??? 5/3/2014 6The imputations pleaded to arise are as follows: (a)Imputation 9(a): The plaintiff is a traitor to the Coptic Orthodox Church because he attended and supported the rival Protestant Church. The defendants submit this does not differ in substance from imputation 9(c). (b)Imputation 9(b): The plaintiff proposes to close down and destroy the Coptic Orthodox Church. The defendants challenge form ("proposes") and capacity. (c)Imputation 9(c): The plaintiff is disloyal. The defendants submit that this imputation does not differ in substance from imputation 9(a). (d)Imputation 9(d): The plaintiff should be defrocked. The defendants challenge form and capacity and say this imputation does not differ in substance from imputation 9(h). (e)Imputation 9(e): The plaintiff serves and assists the Protestant Church against his own Coptic Orthodox Church. The defendants submit this does not differ in substance from imputation 9(a); (f)Imputation 9(f): The plaintiff is a fifth columnist. The defendants challenge form and capacity and submit this imputation does not differ in substance from imputation 9(a); (g)Imputation 9(g): The plaintiff is a disgrace to the Orthodox Coptic Church. The defendants complain this imputation is rhetorical. (h)Imputation 9(h): The plaintiff should be excommunicated. The defendants submit this imputation is not conveyed and/or that it does not differ in substance from being defrocked. 7The matters complained of make serious allegations and are capable of conveying defamatory meanings of and concerning the plaintiff. The question is whether the plaintiff has adequately distilled those imputations in terms of form and capacity of the imputations pleaded.
Principles applicable to the striking out of imputations
Capacity 8The standard by which issues of law raised in a separate trial on capacity was most recently explained in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227: "[134] That standard by which the issue of law raised by the separate trial was to be determined was addressed in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 ("Favell") where the plurality (Gleeson CJ, McHugh, Gummow and Heydon JJ, Kirby J generally agreeing) approved the following statement by McPherson JA in the Court of Appeal: Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken. (Emphasis added) [135] Accordingly, the capacity determination is "an exercise in generosity not parsimony"; while it involves a "matter of impression ... the impression is not of what the words mean but of what a jury could sensibly think they meant": Berezovsky (at [16]) per Sedley LJ delivering the judgment of the court. Implicit in Sedley LJ's observation, is that the question of course is "what a jury could sensibly think [the words] meant" to the ordinary reasonable reader. [136] One reason "great caution" is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that "no reader could reasonably understand the words to bear any meaning outside the range delimited ... by the judge; and that it would be 'perverse' for any jury to do so": Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 89 ("Jameel") (at [9]) per Simon Brown LJ (Mummery and Mance LJJ agreeing). [137] Thus, the focus should be on the fact that the decision deprives the plaintiff of the opportunity to present his or her case to the jury, the importance of whose constitutional role in this area as representatives of the community is frequently emphasised: see John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 ; (2003) 77 ALJR 1657 ("Rivkin") (at [2]) per Gleeson CJ (who also agreed with Callinan J); (at [184]) per Callinan J. The significance of the jury's role warrants the application of a "high threshold of exclusion": Jameel (at [14]) per Simon Brown LJ [138] In Favell (at [14]-[15]), the plurality appeared to apply a capacity test which asked whether challenged imputations "could reasonably be found by a jury". This is the test adopted in this court: see Marsden (at 164) per Hunt CJ at CL (Mason P and Handley JA agreeing); Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 (at 19); Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254; (2007) Aust Torts Reports 81-915 (at [14]) per Beazley JA (Basten JA and McClellan CJ at CL agreeing). It is consistent with the test applied when determining generally whether a case should be left to a jury: see Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 (at [16]) per Gaudron J; (at [45]) per McHugh J; (at [66]-[67]) per Kirby J; cf Gleeson CJ (at [1]); Callinan J (at [117]-[123]). Naxakis concerned the test to be applied when directing a jury at the close of evidence to enter a verdict in favour of the defendant. Whether or not the Naxakis approach is strictly that which should be applied at a capacity determination was not argued. In any event the court is bound to follow Marsden."
Defamatory meaning 9Only in an extreme and obvious case would the issue of defamatory meaning be withdrawn from the tribunal of fact at trial: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; Bik v Australian Consolidated Press Ltd [1973] 2 NSWLR 473.
Form of imputations 10Where the basis of the objection is one of form, the requirement is that the imputation must specify the act or condition allegedly attributed to the plaintiff by the matter complained of with sufficient clarity to enable the defendants to know the case they have to meet: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. 11As is often the case with applications of this kind, the principal problems with the plaintiff's imputations were not issues of capacity or defamatory meaning, but failure to distil a clear defamatory meaning, failure to differ in substance from each other and pleading imputations which are inconsistent and/or should be pleaded as a fallback to each other. This case is another example of poorly drafted imputations where the generosity of the test for capacity is conflated with an entitlement to plead imputations that are defective as to form. The objections made, and the plaintiff's responses, both conflated issues of form and capacity, when these are two quite different objections.
The imputations the subject of challenge 12The imputations which are challenged are as follows:
Imputation 6(b) 13Mrs Barnett submitted that the use of the word "propose" amounted to saying that there was a possibility or probability that such a course would be taken, and that an imputation to this effect had been struck out by McCallum J in Alex v Gridneff [2013] NSWSC 2025. Counsel for the plaintiff agreed that the use of the word "proposes" was impermissible, and was granted leave to replead.
Imputation 6(a) and 6(c) 14The defendants do not challenge imputation 6(a); their complaint is that imputation 6(c) covered similar ground, but that one was worse than the other, in circumstances where they were true alternates. Being disloyal should be pleaded as a lesser imputation to being a traitor, which the parties agreed was the more serious imputation. 15If being a traitor is a more serious form of being disloyal, a fall-back imputation is the appropriate step to take: Kelly v Fairfax Media Publications [2012] NSWSC 690 at [15]-[16]. As for the alternate submission that both imputations cannot arise at the same time, the same fall-back pleading procedure would be still required (Feros v West Sydney Radio Pty Ltd (New South Wales Court of Appeal, Moffitt P, Reynolds and Samuels JJA, 22 June 1982), although as a matter of logic it is hard to see how a person can be a traitor without being disloyal. Whether the imputations are questions of degree, or are inconsistent but separate stings, they should be pleaded as fall-back imputations. 16Accordingly, imputations 6(a) and 6(c) must be pleaded as fall-backs.
Imputations 6(d) and 6(f) 17Leaving aside the rhetorical use of the word "should", which is a question of form, the defendants submit that this is one of those rare cases where an imputation should be struck out on a capacity basis. Where does the matter complained of state, or even infer, that by attending Church of England services, the plaintiff deserves to be not only defrocked, but excommunicated? 18Counsel for the plaintiff conceded in argument that the imputation of deserving excommunication was not conveyed, but argued that an imputation that the plaintiff should be defrocked was capable arising from the general tenor of the publication. 19I do not accept this submission. The only reference to the plaintiff is in paragraph 4, where it refers to him "again" attending a Church of England service. The matter complained of clearly says that the authors want clarification about what is occurring, but goes no further than being critical of the diocese on the basis that they are "irresponsibly" not preventing this conduct. 20Neither of these imputations is capable of being conveyed.
Imputation 6(e) 21In Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950 at [26] Levine J stated: "[26] As to imputation 6(e); it is submitted that this does not differ in substance from imputation (b). I agree. Imputation (e) is really a rhetorical flourish and, in my view, it adds nothing to the substance of the first three imputations which, without questioning their meaning in any sense, contain all the elements of "disgrace" and ignominy attendant on being convicted of such offences. Imputations (d) and (e) will be struck out." 22For the same reasons here, an imputation that the plaintiff is a "disgrace" is a mere rhetorical flourish, in that it could mean anything.
Imputations 9(a) and 9(c) 23Although the text of this publication is stronger, the issue of whether the imputation conveyed is one of being a traitor or mere disloyalty is an issue of form, and I make the same ruling.
Imputation 9(b) 24Counsel for the plaintiff made the same concession as to form in relation to the word "proposes".
Imputation 9(d) and 9(h) 25Although the matter complained of contains considerable criticism of the plaintiff, it stops well short of stating, or even inferring, that he should be defrocked. Counsel for the plaintiff conceded that, even though this publication is couched in stronger language, an imputation of deserving excommunication is not conveyed.
Imputation 9(e) 26Imputation 9(e) was withdrawn during argument.
Imputation 9(f) 27Leave to replead this imputation was granted during argument.
Imputation 9(g) 28Conformably with my ruling concerning imputation 6(e), this imputation is struck out.
Costs 29The defendants have been successful in relation to the objections that were taken, and the plaintiff should pay the defendants' costs.
Orders (1)Grant leave to the plaintiff to amend imputation 6(b) to replace "proposes" with "intends" and hold that an imputation to this effect is capable of being conveyed. (2)Imputation 6(c) is to be pleaded as a fall-back to imputation 6(a). (3)Imputations 6(d), 6(e) and 6(f) are struck out. (4)In relation to imputation 9(b), grant leave to the plaintiff to amend "plans" in place of "proposes" and hold that an imputation so pleaded is capable of being conveyed. (5)Imputation 9(c) is to be pleaded as a fall-back to imputation 9(a). (6)Imputations 9(d), 9(g) and 9(h) are struck out. (7)Imputation 9(e) is withdrawn. (8)Imputation 9(f) is struck out with leave to replead. (9)Plaintiff to file an Amended Statement of Claim in 14 days. (10)Matter stood over to Friday 19 December 2014 for further directions. (11)Plaintiff pay the defendants' costs.
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: 16 December 2014
Ramandious
Habashy
[1999] HCA 22
(1990) 21 NSWLR 135
(2005) 79 ALJR 1716
(2003) 77 ALJR 1657
(1999) 197 CLR 269
[2009] HCA 16