Tabbaa v DailyMail.com Australia Pty Ltd

District Court of NSW|2015-11-26|Before: Levine J

The application before the court

These are my reasons for ruling that imputation 3(a) ("the plaintiff is an evil person") should be struck out pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) for reasons of form.
The plaintiff commenced proceedings by way of statement of claim filed on 19 June 2015 for publication of an article in the Daily Mail Australia website. The contents of that publication are set out as an annexure to this judgment.
The parties had discussions about the form and capacity of the imputations following the service of that pleading, which are relevant to the costs of this application. Those discussions, which did not include a challenge to the specific imputation in question, resulted in the filing of an amended statement of claim on 13 August 2015 setting out the following imputations: 1. The plaintiff is an evil person (paragraphs 1, 3, 4, 6, 12, 13-15, 20-26, 31, 32, 41, 44, 50-52, 55 and 56). 2. The plaintiff subjected his daughter to a violent and terrifying ordeal whilst she was trapped in Damascus (paragraph 1). 3. The plaintiff is an awful man (paragraphs 1, 3, 4, 6, 12, 13-15, 20-26, 31, 32, 41, 44, 50-52, 55 and 56). 4. [This imputation has been deleted in the Amended Statement of Claim.] 5. The plaintiff forced his daughter to marry her cousin 15 years her senior (paragraphs 1, 3, 4, 44, 50-52, 55 and 56). 6. The plaintiff subjected his wife to 20 years of violent marriage (paragraphs 1, 22 and 55). 7. The plaintiff kidnapped his daughter (paragraphs 1, 3, 4, 44, 50-52, 55 and 56). 8. [This imputation has been deleted in the Amended Statement of Claim.] 9. [This imputation has been deleted in the Amended Statement of Claim.] 10. The plaintiff forced his daughter to have a virginity test (paragraphs 1, 4, 13, 14, 22 and 23). 11. The plaintiff beat his daughter at her auntie's house (paragraph 22). 12. The plaintiff is a violent and cruel man (paragraphs 1, 3, 4, 6, 12, 13-15, 20-26, 31, 32, 41, 44, 50-52, 55 and 56). 13. [This imputation has been deleted in the Amended Statement of Claim.]

The nature of the dispute concerning the imputation

Mr Rasmussen had agreed to remove an imputation that "the plaintiff is the most evil person that anyone would ever meet" (previously imputation 3(m)) and does not resile from that position, but submits that the word "evil" is of importance in relation to defamatory sting, and that the plaintiff should be entitled to incorporate it into an imputation. Mr Richardson submits that the word "evil", like the word "corrupt" or the phrase "breach of trust", has more than one meaning as well as failing to comply with the requirements of specificity.

The form and nature of the matter complained of

The matter complained of is a publication on the defendant's website consisting of photographs, a video and 47 paragraphs of text. The written part of the publication is essentially a summary of the contents of a 60 Minutes programme titled "Forced Marriage: An Extraordinary Story of Kidnap, Survival, Escape and Hiding". The Daily Mail journalist, Sarah Dean, does not appear to have conducted any extra interviews or carried out any other researches; this is an article of the kind sometimes referred to as a "recap", which simply reports a news story from another media source.
The effect of this is that there are no statements of fact in the publication in these proceedings, which are inconsistent, different, or in addition to, the material on 60 Minutes. This is relevant because an imputation in very similar form ("That the plaintiff is an extremely evil person") was struck out by McCallum J in Tabbaa v TCN Channel Nine Pty Ltd (No 3) [2015] NSWSC 1114, on the basis that the meaning of an imputation that the plaintiff was evil (even "extremely evil") was not sufficiently clear to enable the defendant to plead in answer to it and failed to meet the requirement of adequate specificity (at [22]-[23]): "[22] In my view, the issue in the present case is similar to that considered in Drummoyne. This is not a case of a two-word billboard. In the context of this lengthy programme, the meaning of an imputation that the plaintiff is evil (even extremely evil) is not sufficiently clear to enable the defendant to plead in answer to it. As submitted by Mr Dawson, the matter complained of does contain substantially greater specification of the evil opened in the daughter's remarks. Further, in my view, the existing imputations cover that field. [23] The imputation in its present form is apt to generate confusion, both at the pleading stage and at the trial. By what measure should the defendant determine whether to plead truth to such an imputation? What documents would be discoverable in aid of a truth defence? Could the plaintiff be interrogated as to all aspects of his life? Without giving in to Manichaeism, could he meet the defence with evidence of his being good? In my view, the imputation fails to meet the requirement of adequate specificity and is liable to be struck out on that basis. Having regard to the scope of the existing imputations, I do not think the plaintiff should have leave to re-plead that imputation."

The plaintiff's three arguments

Mr Rasmussen urged me to disregard both McCallum J's reasoning and decision in limine, for the three reasons set out below.

A. The decision of McCallum J is not binding

I accept that McCallum J's judgment is not binding in terms of stare decisis principles, although considerations of comity must carry weight, especially where a judge of McCallum J's expertise has considered the relevant principles.

B. The decision of McCallum J dealt with an entirely different, and shorter, publication

This matter complained of, unlike the mater complained of in the proceedings before McCallum J, contains pictures only in the form of embedded images in what Mr Rasmussen called "a printed article". However, I note that the publication on the website includes a link to a 2 minute 49 second video as well as the still photographs, so this statement is incorrect.
I agree that there is far more detail in this publication than was the case in the proceedings based solely on the 60 Minutes broadcast which was the subject of consideration by McCallum J in Tabbaa v TCN Channel Nine Pty Ltd (No 3). It is set out in writing, although accompanied by a short video extract from the programme, with headings and portions in bold, which would mean that the evanescent and transient nature of television programmes (Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158) does not apply. I agree that the format (but not the content) is different, but consider this supports the need for precision of the imputations, as opposed to the greater degree of flexibility for form and capacity of imputations where a publication is either very short or a television broadcast (Amalgamated Television Services Pty Ltd v Marsden at [12]).

C. The principles applied by McCallum J do not apply to this publication

Mr Rasmussen submitted that it was settled law for a plaintiff to be able to use the words of the matter complained of, that the objection was really a capacity objection and that there was no ambiguity or uncertainty in the word "evil".
It is not in dispute that, in appropriate cases (see for example, Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 at [29] and Toben v Milne [2014] NSWCA 200 at [21]), a plaintiff may use a word or phrase from the matter complained of rather than rephrase what has been written or said.
However, the issue is not resolved by accepting that the plaintiff is entitled to use the defendant's own words. Even though I have accepted Mr Rasmussen's submissions that there are differences in form in the matters complained of, I would still have arrived at the same conclusions as McCallum J in relation to this imputation as to the deficiencies in form of this imputation. The difficulty is that in the context of this lengthy article (even more lengthy than the 60 Minutes broadcast, some of which forms part of it), the meaning of an imputation that the plaintiff is evil is not sufficiently clear to enable the defendant to plead in answer to it.
I am conscious, in this regard, that it is possible for certain of the readers not to have pressed the "play" button to play the video, or to activate the series of photographs, or even to read to the end of the article. The issue of how Internet publications are read (as opposed to more linear print publications) is a factor that courts may need to take into account in some internet publications (see the discussion of this issue by Dinika Roopani, "The scope and content of a 'publication' on the internet for the purposes of defamation law" (2015) MALR 33). However, this is not one of them. The written text includes large slabs of interviews given on 60 Minutes and the degree of similarity extends to the format of the presentation, ending with the statement by the plaintiff's daughter at the end of the programme about how "evil" the plaintiff is.

Precision and ambiguity in meaning

The first problem is the concept of "evil" which, like the concept of "breach of trust" in Singleton v Ffrench (1986) 5 NSWLR 425, is capable of a specialist meaning as well as the more general one of being a person warranting the decription "evil" for conduct of the kind attributed to the plaintiff in these proceedings.
Mr Rasmussen submitted that the plaintiff meant "evil" in the secular sense of the word. A person may be evil in the non-religious sense of the word (for example, the character "Dr Evil" in the Austin Powers film series). However, "evil" also has a particular connotation in terms of religious meaning which, having regard to the nature and context of the events described in the matter complained of (where the religious practices of one or more of the protagonists appears to be a factor), is capable of leading to ambiguity and confusion at the trial. This is because evidence of "evil" (or of "goodness" in reply, as to which see McCallum J in Tabbaa v TCN Channel Nine Pty Ltd (No 3) at [23]) could relate to the conduct which is described, but as to whether it is "evil" in the religious sense.
The religious flavour of "evil" is best demonstrated, not by a dictionary definition, but by the imputations of being "evil" pleaded in Falkenberg v Nationwide News Pty Ltd (Supreme Court of New South Wales, Levine J, 16 December 1994). The plaintiff sued over a Gary Larson "Far Side" cartoon of "Graffiti in Hell", which depicted the devil writing graffiti consisting of: "For a pleasant conversation call Satan 5551232"
Imputations that the plaintiff was "evil" and "an evil fiend" were pleaded (the telephone number in question was the plaintiff's telephone number). The matter complained of in those proceedings was struck out for unrelated reasons, but the use of "evil" in the imputations is telling.
The second problem is that the degree of specificity required of a plaintiff when pleading an imputation must always be based upon the nature and extent of the publication in question, for the reasons explained by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137.
This is not a billboard containing a few words of the "X is disgusting" variety, but a lengthy article where the precise conduct is spelled out in considerable detail. There is no need for the plaintiff to take refuge behind the use of the word "evil" on the basis that there is no greater specificity in the matter complained of.
This is a publication which is full of specificity, and the plaintiff's avoidance of those specific imputations and preference for an umbrella term such as "evil" needs to be seen in that light.
These are not objections based on capacity, but on the imprecise nature of the imputation and the ambiguity of the word "evil". The plaintiff must identify the act or condition with sufficient precision for the defendant to know what to justify. Imputation 3(a) fails to do so and accordingly is struck out.

Should leave to replead this imputation, or a general leave, be granted?

Mr Rasmussen sought leave to replead, which Mr Richardson opposed, although agreeing that an amended statement of claim identifying some of the unpleaded acts or conditions which could "fill in the gaps" left if this imputation is struck out.
A difference between these proceedings and the proceedings before McCallum J is that the imputations here do not cover the field. The plaintiff is granted leave to file an amended statement of claim so that he may consider whether or not to plead imputations arising from the acts and conditions referred to by the plaintiff's daughter when using the term "evil". In Tabbaa v TCN Channel Nine Pty Ltd (No 3), McCallum J noted the scope of the existing imputations as being a reason why the plaintiff should not be granted leave to replead (at [23]). Mr Richardson did not suggest that this was the case here.
Mr Rasmussen should not, however, take this as being an invitation to redraft this imputation to contain some epexegetic extension to the effect that the plaintiff is evil because of some act or condition. The plaintiff's imputations need to come to terms with the meanings (i.e. the deep structure) of the publication.

Costs

Mr Rasmussen submitted that the defendant should pay the plaintiff's costs because Mr Richardson had not objected to this imputation in the amended statement of claim until after it had been pleaded, despite the availability of McCallum J's judgment, which had been handed down a few days earlier.
I do not see this delay as constituting any reason for varying the usual order that costs should follow the event.
Accordingly, the plaintiff should pay the defendant's costs of the argument.

Orders 1. Imputation 3(a) is struck out. 2. Plaintiff to pay the defendant's costs of the argument today. 3. Plaintiff to file and serve amended statement of claim in 14 days. 4. Matter stood over to Thursday 10 December 2015 in the Defamation List.

Annexure A 1 How a Sydney teen, 13, was kidnapped by her father, taken to Syria and forced to marry her cousin before escaping violent and terrifying ordeal on her 18th birthday http://www.dailymail.co.uk/news/article-2673948/How-Sydney-teen-13-kidnapped-father-taken-Syria-forced-marry-cousin-escaping-violent-terrifying-ordeal-18th-birthday.html 2 Daily Mail Australia 3 How a Sydney teen, 13, was kidnapped by her father, taken to Syria and forced to marry her cousin before escaping violent and terrifying ordeal on her 18th birthday - Australian Rania Farrah was taken against her will to Syria while on holiday with her older brother in Egypt - Her father's family turned her into a child bride while she was trapped in the country's capital, Damascus, for five years 4 - Forced to have a virginity test and was beaten by her father and brother - Managed to escape on 18th birthday after contacting British Embassy - Is still hiding from her father, who is also now allegedly back in Sydney 5 By SARAH DEAN PUBLISHED: 22:31 EST, 29 June 2014 | UPDATED: 23:56 EST, 30 June 2014 6 An Australian girl who was kidnapped, beaten and married off to her older cousin by her father's family in Syria at the age of 13 has spoken out about her horrific five-year ordeal for the first time. 7 Rania Farrah was on what was meant to be a trip of a lifetime to Egypt to visit the pyramids with her older brother but instead ended up being turned into a child bride by her own family. 8 Appearing on Channel Nine's 60 Minutes on Sunday night, Ms Farrah revealed she planned to commit suicide if her escape plan on her 18th birthday didn't work, and said: 'I was just in a depression the whole time I was there… I just thought of Australia.' 9 Scroll down for video 10 Kidnapped: Australian Rania Farrah was 13 when she was abducted by her father's family and taken to Syria from Egypt 11 Ms Farrah, who grew up living in Sydney's southwest and is the daughter of a Syrian Muslim and his Australian convert wife, was married off to her cousin who she had never met and endured terrible beatings after being taken to Syria's capital Damascus from Egypt. 12 Her mother, who had previously fled Ms Farrah's father after 20 years of violent marriage, knew about her daughter's kidnapping but told her during phone calls from that she could not afford to bring her home to Australia. 13 On arrival in Damascus, Ms Farrah was subjected to a virginity test because her father decided she had been under bad influences when in Year 7 at school, when she started smoking cigarettes and talking to boys. 14 'They wanted to check for my virginity. They said to enroll in a school they needed to check I was a virgin,' Ms Farrah explained. 15 Girl whose father abducted her and married her off (related) 16 17 18 19 Tearful: Ms Farrah was emotional as she retold her horrifying ordeal on Channel Nine's 60 Minute show on Sunday night 20 21 Trapped: Ms Farrah, seen here at 13, had travelled to Egypt on what was meant to be a trip of a lifetime to visit the pyramids with her older brother but ended up being turned into a child bride 22 She felt 'confusion and fear' as nurses came and held her down. After the virginity test - despite the results showing she was indeed a virgin - her father and brother beat her at her Auntie's house. 23 'It's quite a normal thing to kill your daughter for not being a virgin,' she noted. 24 On Sunday, Ms Farrah described her father as 'an evil person, he's the most evil person you'll ever meet'. 25 Opening up to Liz Hayes about the shocking crime of forced marriage that affects hundreds of Australian women every year, she explained that she shut off her emotions and played along with her family's plan while dreaming of her escape. 26 Living in a strict Muslim world, she attended an Islamic school and learned Arabic. 'I did all the things they asked me to do… I was taught how to pray and fast for Ramadan,' she said. 27 28 29 Reenactment: The 60 Minute show illustrated how Ms Farrah escaped Syria on her 18th birthday. She was driven to safety in Jordan by British Embassy officials before boarding a flight to Sydney 30 31 Ms Farrah was taken from Egypt (bottm left) to Syria's capital Damascus 32 Her second cousin, who she was forced to marry, was in his early thirties and Ms Farrah avoided 'eye contact' and never spoke to him. 33 'We had the engagement party, I got given the gold… I put on the face. But I didn't feel anything because by that stage I was already planning my escape.' 34 Ms Farrah hatched an escape plan to return to Australia on her 18th birthday and was helped by the British Embassy to return to Sydney. 35 A neighbour, who was around the same age as Ms Farrah, had passed her the phone number for the embassy. 36 But she had to wait until she was 18 before officials were legally allowed to help her. 37 When she was legally an adult, they told her a woman would wait for her at the Four Seasons hotel in Damascus. Ms Farrah crept out her house and jumped into a taxi while her grandmother was asleep after morning prayer. 38 39 Back home: Miss Farah is now a university student with dreams of working in business. She has taken out a restraining order on her father who has also returned to Sydney 40 Feeling trapped and desperate, she said: 'If I didn't get out I was going to kill myself that day.' 41 Luckily an official was waiting for her at the hotel and gave her a 'big hug'. They then travelled to the Jordanian border with two body guards and after a tense conversation with Syrian border patrol, Ms Farrah was on her way to freedom and back to Australia. 42 'It was early morning when we arrived and we flew over Sydney Harbour,' Ms Farrah recalled tearfully of arriving back in her homeland. 43 She said her mother and family in Australia has never asked about her time in Syria or asked how she was feels to be home. 44 And although she is out of Syria, she is still terrified her father will track her down and has taken out a restraining order against him. 45 Unfortunately Ms Farrah's story is not as rare as it might seem. 46 The Immigrant Women's Health Service in Fairfield, in Sydney's west, has rescued 62 child brides from Iraqi, Afghani, Pakistani, Indian, Egyptian, Turkish and Sudanese families over the past three years. 47 Read more: Channel Nine's 60 Minutes 48 49 Transcript of video Embedded in Daily Mail Article 50 Presenter: For seven years the ominous threat of a dark family secret has forced Rania Farrar to live in constant fear. 51 Rania: He's just an evil person, he's the most evil person that I have ever met or anyone would ever meet. He's an awful, awful, awful man. 52 Presenter: At the age of just 13, she was abducted by her own father and later forced to marry a cousin fifteen years her senior. 53 Rania: When I see photos of my friends that I'd left behind um, photos of them going through high school and year ten formal and all that stuff, um I get jealous that I didn't get that. 54 Presenter: Rania's story began when her mother Margaret met her father Mouhammad here in Australia more than 35 years ago. They moved to Saudi Arabia but their marriage was punctuated by violence and threats. 55 Rania: He used to beat my mum, he never beat us um, but yeah he beat my mum all the time. 56 Presenter: It took many years but when Rania was eight her mother finally fled bringing her five young children with her back to Australia. For young Rania it was a revelation. 57 Rania: We met um my mum's family who were true blue Aussie, They had a big house with a backyard and they had dogs and you know that normal Aussie way, it was really exciting um, I met like friends at school and had our first sleepovers and stuff and Christmas and all that.

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: 26 November 2015

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