PROCEDURE - civil - application that District Court proceedings be transferred to this Court
Legislation Cited: Civil Procedure Act 2005 (NSW)ss 140, 146
Defamation Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Judgment (2 paragraphs)
[1]
Judgment
HER HONOUR: On 29 June 2014, the 60 Minutes programme on Channel Nine television broadcast a segment concerning an alleged forced marriage. The broadcast featured the story a woman who says that, at the age of 13, she was tricked by members of her family into leaving Australia on the pretence of a holiday in Egypt and then taken by her father against her will to live with relatives in Syria. She says that in Syria she was told that she was to marry her cousin, a man many years her senior. Although the girl is referred to by a pseudonym during the broadcast, there is no attempt to conceal her visual identity and the programme includes footage of her father.
On 16 March 2015, the father, Mr Mouhammad Tabbaa, commenced these proceedings for defamation in respect of the broadcast on 60 Minutes, its posting on the 60 Minutes website and a re-publication of the same broadcast in December 2014. At the time the proceedings were commenced, the plaintiff was representing himself but the statement of claim appears to have been prepared with the benefit of legal advice. The defendant is TCN Channel Nine Pty Ltd, which is sued on the basis that it "published a television program 60 Minutes and the 60 Minutes website".
On 22 May 2015, Mr Tabbaa filed a notice stating that he had appointed Mr Gardiman of Turner Freeman to act as his solicitor in the proceedings.
On 19 June 2015, Mr Tabbaa commenced separate proceedings in the District Court in respect of a short segment on Channel Nine early news published on 30 June 2014 (the day after the first broadcast of the 60 Minutes programme) reporting an abridged version of the same story. In the District Court proceedings, Mr Tabbaa also sues on a further segment on the 60 Minutes programme broadcast on 6 July 2014 which gave a short reprise of the earlier broadcast and viewer feedback on that story. Mr Gardiman is the solicitor on the record in those proceedings. The defendant in those proceedings is Nine Network Australia Pty Ltd which is sued as "the owner, publisher, proprietor and controller of Channel Nine television stations".
Tabbaa v TCN Channel Nine Pty Ltd [2015] NSWSC 920 | Case summary | Zoe
The two Channel Nine entities now seek to have the District Court proceedings transferred to this Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW).
The power under s 140 of the Civil Procedure Act is a discretionary power to be exercised having regard to the circumstances of the case and so that justice is best served between the parties: Ryner Pty Ltd v Roller [2007] NSWSC 372 at [7] per Price J (as his Honour then was). Mr Rasmussen, who appears for the plaintiff, submitted that the power is remedial, citing the decision of Latham J in Trilogy Corporate Solutions v Fitzroy Shop Fitting and Building Pty Ltd [2006] NSWSC 1026 at [11]. Acceptance of that proposition does not qualify the power in such a way as to preclude its exercise in a case such as the present.
The application was brought by way of notice of motion in these proceedings. Strictly speaking, the proper course was for the defendant in the District Court proceedings to have made the application by filing a separate summons: see r 6.1(1) of the Uniform Civil Procedure Rules 2005 (NSW). However, each defendant also seeks an order that, in the event that the order for transfer to this Court is made, the two proceedings be tried at the same time. It was obviously convenient to hear all of the relief sought together. No point was taken at the hearing of the application on this question. Accordingly, I am inclined to grant leave to the defendant in the District Court proceedings under r 6.1(1) to take the step of moving the Court for the relief sought in the notice of motion notwithstanding the fact that it did not file a summons.
The plaintiff opposed the transfer of the District Court proceedings to this Court. In correspondence between the parties, the plaintiff's solicitor noted that the proceedings in the Supreme Court are brought against a different defendant. He contended that there are "very obvious differences" between the broadcasts sued on in each proceeding. However, at the outset of argument on the present application, Mr Rasmussen appeared to accept that there are compelling reasons for having both proceedings heard in the same court, suggesting however that the Supreme Court proceedings should be transferred to the District Court rather than the other way around. To proceed on that basis would have required the Court to entertain an application under s 146 of the Civil Procedure Act of which the defendant had no notice before Mr Rasmussen rose to his feet. As already noted, the position taken in correspondence was that the District Court proceedings raise different issues against a different defendant so as to warrant their determination in a different court. In the circumstances, I took the view that the appropriate course was to determine the application properly and promptly brought forward by the Channel Nine defendants on its merits.
I have concluded that the District Court proceedings should be transferred to this Court for the following reasons.
First, there will plainly be efficiencies of cost and time if the proceedings are, at the very least, case-managed together. It is difficult to understand why a different defendant was sued in the District Court. At least insofar as the two segments of 60 Minutes are concerned, the necessary implication of the plaintiff's separate claims is that the two Channel Nine defendants are jointly liable with the other for the publication of that programme - it is not clear why one or other (or both) was not sued in the same action. Indeed, as noted in the defendants' letter to the plaintiff foreshadowing the present application, it appears both causes of action sued on in the District Court could have been included in an amended statement of claim in these proceedings, filed on 5 June 2015. To conduct the two proceedings in separate courts will plainly require the duplication of some work, including attention to pleadings and interlocutory steps and appearances before in court.
Secondly, acknowledging that defences have not yet been filed in either proceeding, there is the prospect, which appears to be more than speculative, that there will be at least some overlap in the defences raised in each proceeding. The plaintiff noted, correctly, that his cause of action under the Defamation Act 2005 (NSW) is the matter complained of, not the imputations. However, a number of the defences under the Act focus on the imputations, not the matter complained of. Even leaving aside the question of defences, in each proceeding the plaintiff asserts that his hurt and harm has been aggravated by his knowledge of the falsity of the imputations. If the plaintiff gives evidence in each proceeding to that effect, common factual issues will arise as to whether (to his knowledge) it was false that he forced his daughter when she was 13 to marry her cousin, whether he kidnapped or abducted his daughter and whether he caused her to be held captive in Syria by her cousin's family.
Further, it is at least on the cards that each defendant will seek to justify at least some of the imputations. In order to do so, it will be necessary to call the daughter as a witness. It would be extremely undesirable for her to have to give evidence as to the events the subject of the matters complained of twice, in separate proceedings.
Even if defences of justification are not pleaded, in light of the overlap between the imputations in each proceeding, it is likely that common issues will be raised by the defences.
Finally, I do not think there is any prejudice to the plaintiff in transferring the District Court proceedings to this Court. Those proceedings were commenced on 19 June 2015 and have not yet come before the Court (the first return of the statement of claim is at 9.30 am on 16 July 2015). In these proceedings, the Court has heard the defendant's objections to the amended statement of claim and those objections are determined in a separate judgment to be published together with this judgment. Without pre-empting the determination of any objections to the imputations in the District Court proceedings, the objections determined in these proceedings will, to a degree, guide the parties as to any such dispute.
In light of the promptness of the transfer application and the fact that its determination has not delayed the first listing hearing in these proceedings, I do not accept the plaintiff's submission that the transfer will occasion any delay to him.
In addition to the transfer order, the defendants sought an order that the two proceedings be tried at the same time. I accept, as submitted on behalf of the plaintiff, that it would be premature to make that order at this stage of the proceedings, before a defence has been filed in either proceedings. Mr Rasmussen accepted that if the District Court proceedings were transferred to this Court it would be appropriate for the two proceedings to be case managed together in the Defamation List and that is the course I propose to adopt.
[2]
Orders
For those reasons, I make the following orders:
1. Pursuant to r 6.1 of the Uniform Civil Procedure Rules, leave is granted to Nine Network Australia Pty Ltd to move on the notice of motion dated 8 July 2015 filed in proceedings 2015/79981 in the Supreme Court of New South Wales.
2. Pursuant to s 140 of the Civil Procedure Act, that proceedings 2015/181496 in the District Court of New South Wales between Mouhammad Tabbaa and Nine Network Australia Pty Ltd be transferred to this Court.
3. That those proceedings be case managed together with proceedings 2015/79981 between Mouhammad Tabbaa and TCN Channel Nine Pty Ltd in this Court.
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Decision last updated: 14 July 2015