Tabbaa v Nine Network Australia Pty Limited [2015] NSWSC 1115

Supreme Court New South Wales

Medium Neutral Citation: Tabbaa v Nine Network Australia Pty Limited [2015] NSWSC 1115 Hearing dates: 31 July 2015 Date of orders: 10 August 2015 Decision date: 10 August 2015 Jurisdiction: Common Law Before: McCallum J Decision: Rulings on imputations Catchwords: DEFAMATION – pleadings – imputations – requirement of specificity Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 14.30 Cases Cited: Tabbaa v TCN Channel Nine Pty Ltd [2015] NSWSC 920 Tabbaa v TCN Channel Nine Pty Ltd (No 2) [2015] NSWSC 921 Tabbaa v TCN Channel Nine Pty Ltd (No 3) [2015] NSWSC 1114. Category: Procedural and other rulings Parties: Mouhammad Tabbaa (plaintiff) Nine Network Australia Pty Limited (defendant) Representation: Counsel: R Rasmussen (plaintiff) ATS Dawson (defendant)

Solicitors: Turner Freeman (plaintiff) M & K Lawyers (defendant) File Number(s): 2015/181496 Publication restriction: None

Judgment 1. HER HONOUR: These are proceedings for defamation arising from the publication of a feedback section on the 60 Minutes programme on Channel Nine. The original programme is the subject of a separate defamation action brought in this Court against a different entity in the corporate group. It is convenient to refer to those proceedings as the TCN Channel Nine proceedings. The present proceedings were commenced in the District Court but were transferred to this Court on the application of the defendant: Tabbaa v TCN Channel Nine Pty Ltd [2015] NSWSC 920. For convenience, I will refer to these proceedings as the Nine Network proceedings. 2. This judgment determines the matters raised at the first listing of the Nine Network proceedings after they were transferred from the District Court. There is a degree of overlap between those matters and the matters determined in the TCN Channel Nine proceedings in my judgments in 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. These reasons should be taken to include the reasons stated in those two judgments. 3. The defendant objects to a number of the imputations pleaded by the plaintiff on the grounds of both form and capacity. 4. The first objection is to imputation 5(c): That the plaintiff forced his daughter to be held against her will. 1. There is a separate imputation (i): That the plaintiff held his daughter captive in Syria for five years. 1. The distinction evidently sought to be made by the pleader in those two imputations is that one complains of an attribution that the plaintiff himself held his daughter captive in Syria, while the other complains of an attribution that he forced her into a situation where she was held against her will by others. The objection taken by the defendant to the existing imputation (c) is that it is tautological or nonsensical. The difficulty lies in the use of the passive voice ("to be held against her will") in combination with the verb "to force". Once cannot force a person to have something done to them by others. After hearing those submissions, Mr Rasmussen consented to have imputation (c) struck out on the understanding that imputation (i) would remain. 2. The next objection is to imputation (d). The imputation presently reads: The plaintiff is the most evil [person] anyone would ever meet. 1. In the related proceedings, I struck out an imputation in that form: Tabbaa (No 2) at [8] to [12]. In those proceedings, the plaintiff sought to re-plead that imputation as follows: That the plaintiff is an extremely evil person. 1. I struck out that imputation, for the reasons stated in Tabbaa (No 3) at [7] to [23]. For the same reasons, leave to plead the same imputation in these proceedings should be refused. 2. The next objection is to imputation (j): The plaintiff subjected his daughter to an experience of horror and sheer terror whilst she was held captive in Syria. 1. Mr Dawson, who appears for the defendant, submitted that the imputation is rhetorical, collecting the sting of a number of other imputations under the description of "horror and sheer terror". Those words are drawn in terms from viewer feedback read by the presenter in the following passage of the broadcast: Incredibly, Rania made it home to Australia and you applauded her courage: "I can't imagine and I'll never understand the horror and sheer terror Rania went through, but from this fellow Aussie, welcome home. 1. In my view, that imputation suffers from the vice explained in Tabbaa v TCN Channel Nine Pty Ltd (No 3). This is not an instance in which the course of borrowing the words of the matter complained of is effective to distil a clear meaning such as to meet the requirement of adequate specificity. Specificity is found in the other imputations. This is not a case of a defamatory publication conveying a general imputation in addition to those specific imputations. Further, I would accept, as submitted by Mr Dawson, that the imputation is rhetorical. In the face of those submissions, Mr Rasmussen consented to have that imputation struck out. 2. The next objection is to imputation (k): The plaintiff is a tyrant in that he subjected his daughter to the tyranny of a forced marriage. 1. The only reference to tyranny in the matter complained of is in the following passage of the viewer feedback segment: Perhaps Raymond summed it up best. "Whether it's religious or cultural, we as a society need to protect all women from violence and emotional torture. Let's all stand up against abuse." And that's what Rania is doing on behalf of all women who still face the tyranny of forced marriage. 1. Mr Dawson submitted that those words are directed to the evil of forced marriage and are not capable of attributing the condition of being a tyrant to the plaintiff. He further submitted that, to the extent that the matter complained of imputes that the plaintiff forced his daughter into marriage, that is captured in imputation (b): The plaintiff lured his daughter overseas in order to force her to marry her cousin. 1. In my view, there is force in those submissions. I do not think the matter complained of is capable of conveying the meaning that the plaintiff is a tyrant other than in the act of exposing her to forced marriage, the sting of which is captured in imputation (b). In my view, imputation (k) does not differ in substance from imputation (b) and so contravenes r 14.30 of the Uniform Civil Procedure Rules 2005 (NSW). That imputation should be struck out. 2. The final objection is to imputation (l) which is: The plaintiff tortured his daughter violently and emotionally whilst she was held captive in Syria. 1. That imputation is also derived from the remarks of Raymond set out above, specifically in his reference to the need to protect all women from violence and emotional torture. 2. The defendant objects to that imputation on the grounds of capacity. Mr Dawson noted that the imputation, although derived from the words attributed to Raymond, re-orders those words so as to allege an imputation of both violent torture and emotional torture. He acknowledged that violence is attributed to the plaintiff by the matter complained of but submitted that that is dealt with in other imputations. 3. Whilst I can see the force of that argument, I think that is a question that should be left to be determined by the jury. Imputation (l) will go to the jury.