Supreme Court New South Wales Medium Neutral Citation: Haddad v Nationwide News Pty Limited (No 6) [2015] NSWSC 1667 Hearing dates: 30 October 2015; 2 November 2015 Date of orders: 02 November 2015 Decision date: 02 November 2015 Jurisdiction: Common Law Before: McCallum J Decision: Grant leave to the plaintiffs to file an amended statement of claim so as to insert new particular 7(b). Grant leave to the defendant to file the second further amended defence to the amended statement of claim Catchwords: DEFAMATION – imputations – late application to amend in case of ambiguity – reply – late application to file reply Legislation Cited: Defamation Act 2005 (NSW), s 30 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Brooks v Fairfax Media Publications Pty Ltd [2015] NSWSC 986 Carolan v Fairfax Media Publications Pty Ltd (No 4) [2015] NSWSC 1399 Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 Singleton v Ffrench (1986) 5 NSWLR 425 Category: Procedural and other rulings Parties: Wisam Haddad (first plaintiff) Steve Dablis (second plaintiff) Jamal El-Haouli (third plaintiff) Mauhamed Sari (fourth plaintiff) Nationwide News Pty Limited (defendant) Representation: Counsel: No appearance for the first plaintiff T Molomby SC with R Rasmussen (second, third and fourth plaintiffs) T Blackburn SC with L Barnett (defendant) Solicitors: Zali Burrows Lawyers (second, third and fourth plaintiffs) Ashurst Australia (defendant) File Number(s): 2013/279941 Publication restriction: None Judgment – ex tempore 1. HER HONOUR: These are proceedings for defamation listed for hearing on 30 November 2015 with an estimate of three weeks. There are four plaintiffs in the proceedings, each of whom sues on the same two publications. One of the plaintiffs, Mr Wisam Haddad, has not appeared on the present application. 2. Until recently, Mr Haddad was represented by a solicitor, Mr Mitry. On 28 October 2015, Mr Mitry filed a notice of intention of ceasing to act. Owing to the closeness of the filing of that document to the hearing date, in accordance with the Uniform Civil Procedure Rules 2005 (NSW), the notice allowed 28 days' (rather than the ordinary seven) notice of Mr Mitry's intention to serve a notice of ceasing to act. Importantly, however, the email under cover of which the notice was provided to the parties and to the Court stated that the reason for Mr Mitry's ceasing to act is that his services had been terminated by the first plaintiff. 3. When the argument in this matter commenced in the Defamation List last Friday, Mr Haddad was called outside the Court three times and did not appear. Mr Blackburn SC, who appears with Ms Barnett for the defendant, very properly raised a concern as to whether the argument should proceed in Mr Haddad's absence against the risk of his not knowing the matter was listed. Owing to the urgency of the applications now before the Court, however, I determined that it was appropriate to proceed to hear the two applications so as to obviate the risk of their not being determined in a timely way for the benefit of the other parties in the proceedings. Further, when the present argument was listed after argument on the last occasion (on an occasion where Mr Haddad was represented), the time and date of the argument was fixed. Accordingly, Mr Haddad can be taken to have known of the listing. In referring to "the plaintiffs" in the balance of this judgment, I am referring to the second, third and fourth plaintiffs. 4. There are two applications by the plaintiffs before the Court. The first is the plaintiffs' application to amend their statement of claim. Secondly, there is an application by those plaintiffs to file a reply. 5. The reason for the application to amend the statement of claim is to clarify a perceived ambiguity in one of the imputations specified by the plaintiffs. The present imputation relied upon by each as arising from the second matter complained of is "that he took part in a violent protest". Mr Molomby SC, who appears with Mr Rasmussen for the plaintiffs, seeks to amend the imputation to the following: "that he willingly took part in the violence at a protest." 1. The authorities are clear that in the case of ambiguity, the court's duty is to determine the matter in advance of the trial. Ambiguity should not be taken to have been cured by a statement from the bar table by a legal representative as to what it was intended the imputation should mean: Singleton v Ffrench (1986) 5 NSWLR 425; Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273. 2. In my view, there is an ambiguity in the existing imputation. So much was made clear at an earlier trial involving the same publications but a different plaintiff, Mr Hamza Cheikho. The defendant in that case (which is the same as the defendant in the present case) put a case to the jury to support a plea of truth to the existing imputation that although the plaintiff was not himself proved to have been violent at any point at the protest in question, the protest turned violent and that the plaintiff did not choose to leave when that occurred, with the result that he could be said to have taken part in a violent protest. To put the matter shortly, the defendant put a case in which the adjective "violent" attached to the protest, not the conduct of the plaintiff. 3. The plaintiff put the case differently in those proceedings. Mr Molomby, who also appeared for Mr Cheikho, submitted to the jury that in order to find that imputation true, they would have to find that Mr Cheikho participated in some of the established violence that occurred at the protest. The jury's verdict suggests that they understood the imputation in the former rather than the latter sense. Importantly for present purposes, it is clear not only that there is ambiguity in the imputation but that the ambiguity was evidently not discerned as between the legal representatives for the parties in the Cheikho proceedings (who are common to these proceedings) until during the trial. It follows that, in accordance with the authorities to which I have referred, the ambiguity should be clarified by determination of the Court at this stage. 4. The defendant would not oppose clarification so as to specify the lower imputation; that is, the one in which the adjective "violent" attaches to the protest rather than the person. They do, however, oppose the amendment proffered by Mr Molomby which attributes the plaintiffs, rather than the protest, with the violence. The first ground on which the new imputation is opposed by the defendant is capacity. That is, it is contended that the second matter complained of is not reasonably capable of conveying that imputation. Whilst I accept that respectable arguments could be put to the jury on that issue, in my view it is clear that it is an issue on which reasonable minds could differ. It follows, in accordance with authority, that I am bound to rule the imputation, if otherwise allowable, to be one that should go to the tribunal of fact. 5. More pertinently, the defendant submits that the amendment to plead the higher imputation should not be allowed at this stage on the grounds that it comes too late and would occasion prejudice to the defendant. In particular, there was evidence that had the higher imputation been on the pleadings from an earlier point in time, they would have prepared differently and that the defendant cannot now meet that case. 6. In particular, the defendant read an affidavit from Ms Norgard, who was cross examined by Mr Molomby. In the unusual circumstances of this case, that is, having the history of having been the trial judge presiding over the Cheikho trial, I considered that it was appropriate to allow cross examination notwithstanding the fact that it was an interlocutory application. The effect of Ms Norgard's evidence was that whilst she accepted that the defendant has undertaken a thorough review of photograph and video evidence of the protest, the defendant has not pursued the course of identifying and speaking to any potential witnesses who might give evidence of any violence on the part of any of the plaintiffs. That is the case in the context, it should be noted, that the current imputations include an imputation pleaded by each plaintiff "that as one of an angry mob he took part in a riot" and "that he took up arms against the police". 7. Mr Blackburn submitted that the proposed new imputation is vastly different from either of those imputations and would necessarily involve a deal of further investigation. The evidence of Ms Norgard, which I accept without equivocation, has not persuaded me that there is any practical prejudice to the defendant such as to warrant refusing the proposed amendment. In particular, the prospect that, had the suggested further inquiries been undertaken, the defendant would have identified any witness to any violence on the part of any of the plaintiffs who was prepared to come forward and able to give cogent evidence to prove any more than is shown on the photograph and video footage (other than what has been dealt with by police by way of prosecution for an offence) is so slight as I think to be fairly disregarded at this point. 8. To those observations may be added the importance of the principle of proportionality in this context. It is clear that the defendants have undertaken a great deal of investigation of the video footage. There must be a real question as to how far a party could appropriately go in order to find some evidence to prove the truth of an imputation which, if conveyed, they ought to have had evidence to prove at the time of publication (see generally my remarks in Brooks v Fairfax Media Publications Pty Ltd [2015] NSWSC 986). 9. In all the circumstances, I am persuaded that it would be appropriate to allow the plaintiffs to amend the imputation by way of resolution of the currently ambiguous imputation. 10. The second application is the plaintiffs' application for leave to file a reply. Presently, the defendant has defences of qualified privilege and honest opinion and those defences have stood on the pleading for some time. To date, the plaintiffs have filed no reply. The present application has been prompted by the fact that the defendants have foreshadowed amending the particulars of qualified privilege in the existing defence so as to add a new particular in the following terms: "The first matter complained of was published pursuant to an encouragement from NSW Police, in substance, that it would be beneficial to their investigation of the assembly if photographs of persons associated with the assembly could be published and the public asked for help identifying them". 1. The proposed reply seeks to meet that new case but also pleads a reply to the defence of honest opinion which, as already noted, has not currently been the subject of any reply. In each case, the reply pleads that the publication of the relevant matter complained of was actuated by malice. As to the defence of honest opinion, the reply pleads that the opinion was not honestly held by the defendant and that the defendant did not believe that the opinion was honestly held by the defendant's employees or agents. Without reciting the detail of the reply, in each case, the relevant contention or matter defeasance is said to emerge from two matters. First, the language of the relevant matter complained of, and secondly, the selection of the photographs of each plaintiff published on the front page of the newspaper. 2. Mr Blackburn accepted, in principle, that an amendment to the defence would ordinarily give rise to an entitlement to amend or put on a reply; that is, to revisit the pleadings by reference to the new issues raised. The proposed amendment raises an important issue because it arguably makes the defence of qualified privilege at common law stronger. Whereas that defence is ordinarily likely to fail in the case of a mass media defendant (as ample authority shows), the new point in this case is an unusual one, which could well warrant revisiting the pleadings. In principle, I accept, as submitted by Mr Molomby, that the new particular was an occasion for rethinking whether to put on a reply at all. Mr Blackburn submitted, however, that the proposed reply, as particularised, is hopeless. 3. As already noted, the reply rests on a combination of the language of the matter complained of and the choice of the photographs of each plaintiff. Mr Molomby accepted that the choice of language on its own would not warrant the assertion of malice in each case. It may be observed that each of the matters pleaded in the reply is a feature of the matter complained of, which it would be available to the plaintiffs to rely upon on the existing pleadings to rebut the element of reasonableness required to be proved by the defendant in order to establish the defence of qualified privilege under s 30 of the Defamation Act 2005 (NSW). The real question is whether those new particulars are capable of proving malice. 4. The particular specified to support the pleading of malice is that the defendant knew that the matter complained of was untrue or, in the alternative, was wilfully blind to the truth or falsity of the matter complained of. As to the photographs, the particular specified is that the person who selected the images of the plaintiffs for publication in the matter complained of knew from an examination of the image of each of the plaintiffs that the published photograph of that plaintiff did not represent a "face of rage", that he was not angry and that he was not part of an angry mob. Ultimately, as submitted by Mr Blackburn, this application should turn on the question of whether that inference is capable of being drawn. 5. To support the contention that it was not, Mr Blackburn tendered the full photograph of each of the three plaintiffs on the present application from which the smaller photograph of him appearing on the front page of The Daily Telegraph was drawn. That material is Ex 1 on the application. After a careful consideration of the content of the reply and by reference to those photographs, I have determined that the reply should not be allowed to be filed at this stage. I accept that the issue of the choice of photographs and their publication together with the words chosen by The Daily Telegraph is squarely raised by the defendant's proposed amendment. As already noted, that issue separately is already one that can be argued on the question of qualified privilege under the statute. 6. An aspect of the consideration of the proposed new aspect of the defence at common law will be whether the newspaper published the photographs it chose in response to police encouragement or whether those photographs were published for an improper purpose. It seems to me to be simply impossible on the strength of the photographs alone and the words with which they were published to attribute to the person who chose those photographs the state of mind pleaded in the proposed reply. Put simply, it is clear enough, in my view, that each of those photographs could responsibly and without recklessness have been chosen as one to meet the object described in the new particular; that is, of assisting the police investigation into the circumstances of the assembly notwithstanding the strong language used in the matter complained of. 7. Separately, in reaching the conclusion that the reply should not be allowed at this stage, I have had regard to the important principles of case management which should govern the determination of such an application at this stage. I accept that the hearing is still some short period hence and that there would be some time for the defendant to investigate the new issues. However, as stated in my recent decision in Carolan v Fairfax Media Publications Pty Ltd (No 4) [2015] NSWSC 1399, there is an aspect of prejudice which arises simply from allowing issues to be shifted so close to the hearing date. The expectation of parties in the Defamation List, as indicated in practice note SC CL 4, is that matters should ordinarily be able to be prepared for hearing with the proceedings coming before the Court on no more than two occasions, for the first listing and the second listing, as contemplated by the practice note. 8. Those considerations are of less force in the present case where the desire to plead a reply has been precipitated by the new particular and I have had careful regard to that consideration. On balance, however, having regard to what seems to be the evident weakness of the reply coupled with those case management considerations, I have reached the conclusion that the application should be refused. The orders accordingly are: 1. that the plaintiffs have leave to file an amended statement of claim so as to insert new imputation 7(b), "that the plaintiff willingly took part in the violence at a protest"; and 2. that the defendant have leave to file the second further amended defence to the amended statement of claim. ********** 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: 10 November 2015