District Court New South Wales Medium Neutral Citation: Tabbaa v Nine Network Australia Pty Ltd [2015] NSWDC 171 Hearing dates: 13 August 2015 Date of orders: 13 August 2015 Decision date: 13 August 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (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. Catchwords: TORT - defamation - imputations - form and capacity - application for transfer of proceedings - case management of multiple proceedings in the Supreme and District courts Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 62 Uniform Civil Procedure Rules 2005 (NSW), r 28.2Click here to enter text. Cases Cited: Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 Bateman and Idameneo (No 123) Pty Ltd v Fairfax Media Publications Pty Ltd and Ors [2013] ACTSC 72 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Dank v Herald and Weekly Times Pty Ltd (ACN 004 113 937) [2015] VSC 270 Dank v Whittaker (No 4) [2014] NSWSC 732 Fairfax Media Publications Pty Ltd v Cummings; Fairfax Digital Australia & New Zealand Pty Ltd v Cummings [2013] ACTCA 37 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Maitland v Nationwide News Pty Ltd [2004] NSWCA 155 Maple v David Syme & Co Ltd [1975] 3 NSWLR 97 Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523 Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 Tabbaa v Nine Network Australia Pty Ltd [2015] NSWSC 1115 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 Toben v Mathieson; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530Click here to enter text. Category: Procedural and other rulings Parties: Plaintiff: Pamela June Tabbaa Defendant: Nine Network Australia Pty Ltd (ACN 008 685 407) Representation: Counsel: Plaintiff: Mr R Rasmussen Defendant: Mr A T S Dawson Solicitors: Plaintiff: Turner Freeman Defendant: M+K Lawyers File Number(s): 2015/181480 Publication restriction: None Judgment 1. The plaintiff brings proceedings for defamation for publication of a broadcast of and concerning the plaintiff as set out in a section of the "60 Minutes" programme broadcasted on 29 June 2014. 2. These are reasons for my rulings in relation to the capacity of the imputation (d). 3. The imputations pleaded in paragraph 3 of the statement of claim are as follows: 1. The plaintiff lied to her daughter when she said they would take her to Egypt for a holiday (lines 10-27, 64-93, 132-157). 2. The plaintiff assisted in the abduction of her daughter (lines 10-27, 64-93, 132-157). 3. The plaintiff conspired with her husband's family to keep her daughter in Syria for years against her daughter's will (lines 10-27, 64-93, 132-157). 4. The plaintiff condoned her daughter being married to a cousin being a man she never met (lines 10-27, 64-93, 132-157). 1. Mr Dawson, for the defendant, submits that the matter complained of, while indicating that the plaintiff lied to her daughter about the reasons for taking her to Egypt and assisting in the keeping of her there for five years, neither states nor implies that the plaintiff played any part at all in the proposed arranged marriage of the plaintiff to her cousin. Accordingly, imputation (d) cannot be conveyed. The relevant principles 1. The correct approach to a challenge to capacity of the matter complained of to convey imputations was explained by the New South Wales Court of Appeal in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [134]-[138] as follows: "[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](a)); 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." 1. It follows from those principles that the test to apply to the capacity of imputations to be conveyed is a generous one (Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at [6]). This is particularly the case where any publication of an ephemeral nature, such as a television broadcast, is the publication to be considered: Amalgamated Television Services v Marsden (1998) 43 NSWLR 158. 2. The relevant portions of the matter complained of are as follows: 1. There is a reference to the Ms Rania Farrah (identified by the pseudonym "Nadia") refusing to be "forced into her marriage" after she was "kidnapped by her father's family and taken to Syria" when she was only 13 years old. While in Syria, she was "held against her will and married off to her cousin, a man she never met". 2. The first reference to the Ms Farrah's mother is at line 31, where Ms Hayes sets out that "Margaret" (the pseudonym applied to the plaintiff, Pamela June Tabbaa) had an unhappy marriage to Rania Farrah's father, which was "punctuated by violence and threats". The plaintiff fled Saudi Arabia with her children, including Rania, and came to Australia, leaving her husband behind. According to the matter complained of, she has remained separated from Rania's father ever since (see lines 46 to 63), and he in fact remarried and had more children (lines 314 to 317), which is of significance when considering the imputation under challenge. 3. The matter complained of then sets out that when she was 13 years "an extraordinary offer was made": "Rania Farrah: Mu mum told me that my eldest brother wanted to take me to Egypt. They knew that I was obsessed with Egyptology and all, all that stuff so, um they said that they'd take me there for a holiday for two weeks. Liz Hayes: This is the beginning of the trip of a lifetime? Rania Farrah: Yep. Liz Hayes: You, you look pretty… Rania Farrah: I was really excited, yeah, yep. Liz Hayes: But the trip of a lifetime soon turned into a nightmare. After just one week in Egypt, Rania was told she would be taken to Jordan to see her father. Rania Farrah: It was all a plan, to meet us there. Liz Hayes: With who? Who, who? Rania Farrah: Between him, my mother and my father. Liz Hayes: And do you know why they had made this plan? Rania Farrah: Well in their eyes I wasn't doing too well, um, in Australia, Um. Liz Hayes: What did that mean? Do you think? Rania Farrah: Well, getting into to [sic] more trouble once I hit year seven (7) and high school, smoking a cigarette before class or, you know, wagging a day at school, um, talking to boys, um, just, things that every teenager starts to do. So they said right, I think we need to send her over there to um, get her set in her ways, they thought that it would change me. Liz Hayes: It became abundantly clear to you then, in Jordan at least, that that two week holiday was now something else. Rania Farrah: Um, my passport was taken and I was told that I was going to live with my grandmother." (Lines 64 to 90) 1. Rania Farrah describes how she was beaten by her father and brother and taken from Jordan to the Syrian capital, Damascus, where she lived for the next five years. When asked if she had any contact with her family she said: "Rania Farrah: Yeah about um, a month later my Mum called and from that day onwards, she'd call me every 3 weeks. Liz Hayes: And what did you say to your mum? Rania Farrah: I just begged them to come home. Liz Hayes: And what would she say? Rania Farrah: Um, we can't afford it, Um one more year. Liz Hayes: And when one more year went by? Rania Farrah: I'd ask again. Liz Hayes: And? Rania Farrah: The same thing was said. Presenter: Rania Farrah had her teenage years stolen from her. She was kidnapped, held captive by relatives in Syria and married off to a cousin she had never met. Rania was as far from her native Sydney as you could imagine. A prisoner in a foreign land. Most forced marriages end up as a life sentence. But as Rania tells Liz Hayes, she had other plans." (Lines 139 to 154) 1. Confronted with the prospect of marriage to a man 15 years her senior, she "went along with it" (lines 174-177), but she was in fact planning to escape. When asked if the girl who lived next door (who gave her the information which helped her to escape) knew that she was a prisoner who was the subject of an arranged marriage, she replies that: "Rania Farrah: Everyone knew. Everyone who'd ever met me knew. Anyone who'd ever come to the house or met my grandmother or my uncles knew." (Lines 234-235) 1. After her escape, Rania Farrah returned to Australia and she described how her aeroplane flew over Sydney Harbour (lines 304-305). She indicated it was a good feeling but stating "must have been how my mum felt", which I take to be a reference to the excitement she considered her mother would have felt when she first escaped to Australia in Saudi Arabia. Ms Hayes then asks: "Liz Hayes: Did your family understand what happened to you? Rania Farrah: It was never spoken of. No one ever talked about it, no one ever asked what happened. To this day they don't know what happened. Liz Hayes: No one wanted to know what happened to you? Rania Farrah: I don't know, they just never asked. They never asked how, how I was um, feeling to be home which caused a lot more damage." (Lines 308-313) 1. At lines 328 to 332, Ms Hayes reveals that although the plaintiff's husband had refused to meet with them, he "claims he has no knowledge at all of his daughter's time in Syria". All he would say in relation to his daughter's marriage was that forced marriage in Australia was illegal. This leads Ms Hayes to ask the following question: "Liz Hayes: A lot of people would be listening to your story and saying, how on earth did your mum allow that to happen. Rania Farrah: I think when you're bashed and beaten and, and terrorised for twenty (20) years by your husband and then, had the same treatment, almost, from your son after leaving your husband, then I think they just broke her. Liz Hayes: Dr Eman Sharobeem knows some wounds can take a lifetime to heal. Liz Hayes: Have you recovered? Dr Eman Sharobeem: I recovered when my parents said sorry. I recovered when my father and uncles were crying for what happened to me. Liz Hayes: She says, the responsibility of ensuring others don't suffer similar fates is one we must all should as a community regardless of culture, race or religion. Dr Eman Sharobeem: If you see it and you don't act on it, you carry the guilt. You carry the consequence. You carry of being ignorant in a situation where you can step in, participate in saving other person's life" (Lines 335-352) 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]." 1. 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]). 2. 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. 3. 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. 4. 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). 5. 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