Tabbaa v Nine Network Australia Pty Ltd

The parties' submissions

1. Mr Dawson submits that the matter complained of paints a picture of the plaintiff as a woman who was beaten and mistreated by her husband and that, while the other imputations pleaded are conceded (for the purposes of this application) to be capable of being conveyed there is no suggestion that the plaintiff knew about, or played any part in, the proposed marriage of her daughter to her cousin who was the man she had never met. She is as much a victim as her daughter. There is no evidence that the plaintiff even knew about, let alone condoned or acquiesced in the proposed arranged marriage, which arrangements were solely made by her former husband and his family, in circumstances where the plaintiff lived thousands of miles away, and her only contact was her telephone calls to her daughter. He placed great weight on the plaintiff's daughter's remarks about her mother having "married the wrong man" and herself been a victim of him, as indicating that the plaintiff's daughter (and thus the viewer) did not consider the plaintiff to have been a party to this arranged marriage.
2. The ordinary reasonable viewer, watching this programme, would, in my view, place great weight upon the question asked at the end of the interview by Ms Hayes:
3. "How on earth did your mum allow that to happen?"
4. It is in the context of this question that the compassionate response of the plaintiff's daughter (which sought to excuse her mother's conduct) should be analysed Whether the ordinary reasonable listener considers that her references to the plaintiff having suffered domestic violence and as having "married the wrong man" means that this imputation is not conveyed is a matter upon which reasonable minds may differ and thus a matter for the jury.
5. The ordinary reasonable listener would also have heard the statements of Dr Eman Sharobeem, who was similarly forced into marriage. Dr Sharobeen says that she forgave her own parents (referred to in the plural) after hearing them crying and saying "sorry".
6. Additionally, it is clear from the matter complained of that the plaintiff and her husband "made this plan" for their daughter together, even though the daughter was living in Australia with her mother at the time. This "plan" included not only requiring her to live in Jordan with her father, but to undergo a virginity test, being beaten by her father and brother until her aunt intervened, being held prisoner in circumstances where a forced marriage was part of her future life in a "strict Muslim world" (line 156), attending an Islamic school and learning Arabic, attending her own forced-marriage engagement party, and generally leading a life wholly submissive to the wishes of the whole of her family, including her mother, father and brother.
7. Reasonable minds may differ, but it would be open to an ordinary reasonable viewer to consider that the forced marriage was an integral part of the plaintiff's daughter being lured to travel overseas for a purported holiday and then kept imprisoned for the following five years.
8. This brings me to the challenge to the word "acquiesced", a form issue which was brought up without notice during the hearing. Mr Dawson also submitted that the word "condoned" was not a suitable word for inclusion in imputations by reason of its ambiguity.
9. I do not accept this submission. The word "condoned" has been used without objection in imputations in many defamation actions. It was, for example, used in eight imputations in Maitland v Nationwide News Pty Ltd [2004] NSWCA 155, in Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 and in Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523. Possibly by coincidence, the plaintiff lost in all three of these proceedings, after defences of justification succeeded in relation to these imputations (suggestive of the likelihood that the defendants were under no illusions as to the case they had to meet, a common complaint in form arguments). In none of them was the use of the word "condoned" in an imputation the subject of any concern.
10. I am satisfied that the meaning of the word "condoned" is free from ambiguity and does not require replacement by "acquiesced", in the manner sought by Mr Dawson.
11. This imputation will accordingly go to the jury, together with imputations (a), (b) and (c).

Application for transfer of these proceedings to the Supreme Court

1. Mr Dawson has raised an issue of importance in relation to the case management of multiple defamation claims, an increasingly common phenomenon by reason of the failure of the uniform legislation to accommodate electronic publication.
2. These proceedings are one of a series of claims brought both in this court and in the Supreme Court. The plaintiff's husband had previously commenced proceedings in the District Court in relation to this broadcast; he has also, more recently, commenced proceedings against another media publisher, the Daily Mail, for publication of an online article the day following the Channel Nine broadcast, which discussed the contents of the matter complained of. Although there is no application to transfer the Daily Mail proceedings to the Supreme Court, the earlier proceedings commenced by Mr Tabbaa was transferred on 14 July 2015: Tabbaa v TCN Channel Nine Pty Ltd [2015] NSWSC 920 as Mr Tabbaa had commenced separate proceedings in that court against another corporation in the group.
3. It was with this history in mind that, at the end of the imputations argument, Mr Dawson sought an extended timetable to enable him to consider whether these proceedings should also be the subject of an application for transfer to the Supreme Court. The application was opposed by counsel for the plaintiff, who sought a timetable consistent with the same timetable that was agreed today in the Daily Mail proceedings, namely for a defence to be filed by 10 September.
4. Mr Dawson's applications, and Mr Rasmussen's opposition to it, highlight the issue of case management problems generated by multiple claims for defamation. Both parties have the issue of their respective clients' interests at heart, in circumstances where the court must also consult its own convenience and the limited resources available for what could be not only lengthy but fact-repetitive jury trials.
5. These are my reasons for directing him to bring any such application in the Supreme Court in 21 days, failing which these proceedings should have a similar timetable to the timetable in the other District Court proceedings brought by Mrs Tabbaa's husband against the Daily Mail.
6. The circumstances of the transfer of Mr Tabbaa's first set of proceedings in this court were as follows. The plaintiff, then acting for himself, commenced proceedings in the Supreme Court in March 2015 concerning the broadcast of the same matter complained of as that which is the subject of Mrs Tabbaa's claim. In June 2015 the plaintiff commenced fresh proceedings in the District Court for a news story on Channel Nine published in June 2014, one day after broadcast of the first matter complained of. The defendant in those proceedings was Nine Network Australia Pty Ltd. The two Channel Nine entities sought to have the second set of proceedings transferred to the Supreme Court. The plaintiff opposed this application, or alternatively sought to have both actions transferred to the District Court.
7. McCallum J made the orders sought by the defendants. The similarity in content, imputations and reputation damage issues was considerable and, since the proceedings in the District Court had not yet reached a first return date at the time of the application, there was no prejudice caused to the plaintiff by any delay.
8. Rulings have since been made in the Supreme Court on the form and capacity of imputations in these actions: Tabbaa v TCN Channel Nine Pty Ltd (No 2) [2015] NSWSC 921 and Tabbaa v TCN Channel Nine Pty Ltd (No 3) [2015] NSWSC 1114 and Tabbaa v Nine Network Australia Pty Ltd [2015] NSWSC 1115. There is a timetable in place for the filing of defences by Mr Tabbaa by 2 October 2015. Counsel for Mrs Tabbaa in these proceedings, however, seeks an order that the defence be filed by 10 September, which is the date for the defendant in the Daily Mail proceedings to file a defence.
9. It is clear from the text of the matter complained of that the claims made against both Mr and Mrs Tabbaa include allegations of joint acts, although they have elected to sue separately, and in different courts. Mr Dawson's complaint that his clients should not be put to the expense of a lengthy jury trial in two courts over similar factual issues is understandable, but it is not the only relevant factor to take into account.
10. Courts are struggling to deal with the impact of electronic publication upon legislation and case management principles drafted before the impact of these new methods of communication. Where traditional print publication was involved, the concept of abuse of process could safely be limited to more than one set of proceedings over the same publication (Maple v David Syme & Co Ltd [1975] 3 NSWLR 97).
11. That is no longer the case. The problem of the efficient running of multiple sets of proceedings over similar publications, or the same publication on different electronic platforms, in the same court, was flagged in Toben v Mathieson; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530 at [3], where McCallum J commented: "The appropriateness of commencing multiple proceedings where virtually identical matter is published in different versions of the same newspaper remains to be tested in this list: see Dank v Whittaker (No 2)[2013] NSWSC 1064 at [4]."
12. The bringing of multiple proceedings in one court can be resolved by appropriate orders for consolidation, and the mere bringing of such actions does not amount to an abuse of process: Dank v Whittaker (No 4) [2014] NSWSC 732. It is an indication of how profoundly the structure of defamation claims is changing that her Honour declined to follow the majority decision in Fairfax Media Publications Pty Ltd v Cummings; Fairfax Digital Australia & New Zealand Pty Ltd v Cummings [2013] ACTCA 37, preferring the minority decision of Higgins CJ that it may be an abuse for them to be heard separately (at [73] - [75]).
13. The use of cross-vesting legislation to ensure that proceedings are brought in the forum with the closest connection (Bateman and Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd and Ors [2013] ACTSC 72) is of assistance only where proceedings have been commenced in a court other than the court with the closest connection.
14. There does not appear to be any ready solution for multiple proceedings brought in different courts in the same State. The principles discussed by McColl JA in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [134] - [141] did not extend the reasoning to proceedings in other courts over publications similar in both content and temporal terms; Mr Habib's commencement of fresh proceedings in the District Court after losing proceedings in which the radio broadcasts had been relied upon for damages was not an abuse of process.
15. The bringing of multiple defamation claims impacts on court resources. For example, Mr Dank, who commenced proceedings in Victoria as well as New South Wales, sought an order for judicial mediation because of his limited financial resources (Dank v Herald and Weekly Times Pty Ltd (ACN 004 113 937) [2015] VSC 270). Dixon J refused the application as "paradoxical" (at [4]), given the multiple claims brought by Mr Dank in New South Wales and Victoria, but additionally noted, as a factor relevant to the exercise of discretion, the imposition such a request would make on the court's limited resources).
16. Until the uniform legislation is redrafted to bring it up to date with the significant changes wrought by electronic publication, courts will have to deal as best they can with these increasing demands on their resources. However, parties who commence multiple actions in more than one court for defamation over similar material should expect that courts will take into account case management principles of the kind set out in ss 56 - 62 Civil Procedure Act 2005 (NSW) to ensure that justice really is "just, quick and cheap".

Orders 1. Pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW), the defendant's challenge to imputation (d) is dismissed and imputations (a) to (d) will go to the jury. 2. The defendant is to file any application for transfer of these proceedings to the Supreme Court, on the understanding that these proceedings overlap with the action of Mr Tabbaa against TCN Channel Nine Pty Ltd (2015/79981), in 21 days, failing which a Defence is to be filed by 9 September 2015. 3. Matter stood over to the Defamation List on 10 September 2015 at 9:00am. 4. Defendant pay the plaintiff's costs of today.

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: 18 August 2015