Supreme Court New South Wales Medium Neutral Citation: Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365 Hearing dates: 15 September 2016 Decision date: 16 September 2016 Jurisdiction: Common Law Before: McCallum J Decision: Parties to provide agreed short minutes reflecting these rulings by close of business on 22 September 2016. Catchwords: DEFAMATION – defences – defence of contextual truth – application to have contextual imputations struck out as being incapable of being conveyed – care to be exercised before striking out imputations – application to have particulars of truth struck out as being incapable of proving truth of imputations – consideration of proper approach – whether court has authority to strike out relevant particulars on the grounds of proportionality Legislation Cited: Civil Procedure Act 2005, s 60 Defamation Act 2005 (NSW), s 25 Uniform Civil Procedure Rules, r 14.28, r 15.22 Cases Cited: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 Hayson v John Fairfax Publications Pty Limited [2007] NSWCA 376 Jones v TCN Channel Nine Pty Ltd (No 3) [2016] NSWSC 922 Mohammed v Nationwide News Pty Ltd [2016] NSWSC 733 Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784 Category: Procedural and other rulings Parties: Dr Ibrahimi Abu Mohammed (plaintiff) Nationwide News Pty Ltd (first defendant) Matthew Benns (second defendant) Miles Godfrey (third defendant) Representation: Counsel: S Chrysanthou (plaintiff) J Hmelnitsky SC, L Barnett (defendants) Solicitors: Birchgrove Legal (plaintiff) Ashurst Australia (defendants) File Number(s): 2016/124237 Judgment 1. HER HONOUR: This judgment determines an application argued outside the ordinary sittings of the defamation list. The matter was heard yesterday and judgment is being given orally today. Before proceeding to determine the application, I wish to record a matter concerning the nature of this judgment. 2. Clause 20 of the defamation list practice note SC CL 4 provides that, in determining applications in the defamation list, the Court will ordinarily give reasons "in short form". A judgment recently published by the Court of Appeal in Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [46]-[47] discusses my reasons in the judgment at first instance in that case in terms suggesting that it was argued the reasons were inadequate. It is not clear whether that was a discrete ground of appeal or only a matter raised in argument in support of the grounds recorded in the judgment. The Court rejected the complaint, saying (at [47]) that there was no requirement to give "elaborate or extensive reasons for an interlocutory ruling on a matter of procedure". But the judgment makes no reference to cl 20 of the practice note; I infer that it may not have been drawn to the Court's attention. 3. Clause 20 is not, of course, to derogate from the content of the obligation of the court to give reasons in accordance with the requirements of the law. The court must, at a bare minimum, identify the issue for determination and provide an explanation as to how that issue was resolved and why. Rather, I apprehend the Chief Justice's purpose in including that clause in the practice note was to recognise features of the defamation list. In particular, it is a list in which informal procedures are accepted. Parties do not generally file notices of motion; frequently the orders sought are identified by short minutes of order handed up at the outset of argument or else by email to my Associate in advance of the list and even, on occasions, orally. Sometimes, indeed, the orders sought are assumed, counsel launching into argument without articulating the relief sought. 4. It is a busy practice list in which the time taken up by arguments put by counsel often eclipses and intrudes upon the time available for giving an oral judgment. The Court is often required to give judgment quickly or after regular sitting hours or else be forced to mark matters involving other litigants not reached or, in the worst case, to reserve a decision. 5. The requirements of proportionality reflected in s 60 of the Civil Procedure Act 2005 (NSW) are a particular consideration in defamation matters. Reserving reasons contributes to delay (and probably cost) in the determination of such matters, where the risk of disproportion between costs and the interest at stake is high. 6. Against those considerations, there is occasion for reasons to be more fully articulated where, for example, the determination of a matter raised in the list is likely to be of general application. I have taken the trouble to record these matters in light of the experience of Cornwell to which I have referred. Apart from that lengthy introduction, I propose to state these reasons in relatively short form. 7. In the present case, the parties identified the issues for the Court's determination by email. There were three issues identified but it was common ground at the outset of argument that the only matter it was practicable for the Court to determine in the time available was the plaintiff's objections to the defence, the determination of which at the second listing is contemplated in cl 13 of the practice note. 8. The determination of that matter is a priority because the plaintiff seeks referral of the proceedings to a call-over (referral for a hearing date at the second listing also being contemplated in the practice note). The next call-over is due to be held shortly and, as the parties were aware, I am about to go on long leave (as at 5pm today). For those reasons, the application was both heard and determined under a degree of pressure of time. 9. The plaintiff raises two objections to the defence. First, he seeks to strike out three of the four pleaded contextual imputations on the ground that those three imputations are not capable of arising. Secondly, he seeks to strike out some of the particulars of truth. 10. As to the contextual imputations, Ms Chrysanthou, who appears for the plaintiff, accepted that the application she makes is in the nature of a strike-out application invoking the application of the General Steel test. 11. Contextual imputation A is: The plaintiff, a religious leader, stubbornly refuses to acknowledge that religious extremism is to be blamed for murderous acts of terrorism. 1. As already noted, the only objection to that imputation is as to the capacity of the matter complained of to convey it. The conclusion I have tentatively reached as to that imputation is a matter as to which, strictly speaking, the defendants have not been heard. Accordingly, I propose to indicate my preliminary views and to afford the defendants an opportunity to be heard as to those views, should they seek such an opportunity. 2. Although the challenge to the imputation was on the grounds of capacity, I am inclined to think that the imputation is liable to be struck out as being bad in form, both because it is ambiguous and because it is rhetorical. 3. As to ambiguity, the imputation would only be defamatory if the matter the plaintiff stubbornly refuses to acknowledge (that religious extremism is to be blamed for murderous acts of terrorism) is an obvious truth: cf Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784 at [44]. 4. That proposition, that religious extremism is to be blamed for murderous acts of terrorism, is ambiguous. The imputation does not identify what religion is referred to, or what manifestations of extremism. The possibilities are enormous. Separately, in my view, the imputation is rhetorical in that it identifies something that should occur (religious extremism should be blamed for something) rather than something that is an objective fact. I will make no order today in respect of that imputation pending the need to hear from the defendants. 5. Contextual imputation B was not the subject of objection. The defendant proposes to appropriate that contextual imputation on the basis identified in my judgment in Jones v TCN Channel Nine Pty Ltd (No 3) [2016] NSWSC 922. 6. As to contextual imputations C and D, as submitted by Mr Hmelnitsky SC on behalf of the defendant, the plaintiff faces a high test in seeking to have those imputations struck out on a capacity basis. The relevant principles have recently been emphasised in two decisions of the Court of Appeal, in Cornwell at [38]-[41] and Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [28]. 7. For reasons broadly to the effect of those set out in my first judgment in these proceedings, [1] I am not persuaded that either of those contextual imputations is incapable of arising and liable to be struck out. Those imputations will remain on the pleading. 8. The second issue raised by the application, that is, the challenge to the particulars, raises more difficult questions. Unusually, there was a contest as to the correct approach to be applied in determining the plaintiff's objection. The plaintiff's submissions focused on individual particulars. The defendant submitted that the Court should not adopt an atomised approach to the particulars and should not assume a role in pre-empting the use that may be made of any particular evidence at trial if the evidence would be admissible in support of any single imputation. 9. Subject to one qualification, the defendant's submission is in my view correct. An atomised approach ignores the need for the defendant to be allowed to put a whole case, drawing inferences from different parts of the evidence. However, as submitted by Ms Chrysanthou, the terms of section 25 of the Defamation Act 2005 (NSW) and r 15.22 of the Uniform Civil Procedure Rules do direct attention to individual particulars. It is to each individual imputation that the defence of justification is directed. Accordingly, it is correct that a pleading must at least disclose an arguable case as to each individual imputation. That said, the Court must take a cautious approach at the interlocutory stage, adopting the principles stated by Hodgson JA in Hayson v John Fairfax Publications Pty Limited [2007] NSWCA 376 (where his Honour accepted that "there could be circumstances where particulars fall so far short of being capable of supporting the truth of imputations that it could be justified to strike out imputations" but noted "the particulars do not themselves indicate the outer limits of what may be proved. They indicate, in effect, topics on which evidence may be led. But the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate"). 10. A further principle in contest arises from a submission by the plaintiff that the Court should, in determining this application, have regard to the requirement of proportionality reflected in s 60 of the Civil Procedure Act. It may be doubted whether the provisions of that part of the Civil Procedure Act are directed to the substantive question as to whether a pleading raises an arguable case. They are concerned with the efficiency of procedures, not substantive law. 11. In my view, however, authority may be found in r 14.28 of the Uniform Civil Procedure Rules to strike out particulars in an appropriate case where they are apt to cause prejudice, embarrassment or delay. The terms of the rule suggest that relevance alone is not necessarily enough to protect particulars from being struck out. Specifically, the reference to "delay" suggests that the Court has authority to strike out particulars where the matters identified are insufficiently relevant to the issues in the proceedings to warrant putting a party to the trouble and expense of meeting them: cf Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [55]. That, of course, was a case in a different field of jurisprudence but the principle there stated has some resonance in the present context. Again, however, on an interlocutory application, the Court should exercise caution before coming to such a conclusion. 12. It was common ground between the parties that the court has authority to strike out a contextual truth defence or a truth defence where the court reaches a position of confidence that the particulars are incapable of proving the truth of the relevant imputation. 13. Finally, before proceeding to determine the application itself, I should record with precision the contention put on behalf of the plaintiff. Ms Chrysanthou accepted that particulars 11.1 to 11.5 are not liable to be struck out and that a jury could conclude that the plaintiff's imputations (a), (d) and (f) were proved by those imputations. She submitted, however, that the truth defence as to imputations (b) and (e) is unarguable on the particulars pleaded. 14. Against those principles I turn to the particular arguments raised. The argument proceeded by reference to the particulars pleaded in support of the truth defence to imputation (a). The particulars not objected to, 11.1 to 11.5, address the events the subject of the matter complained of, namely, the terrorist attacks in Paris in November 2015. Their relevance to that subject matter was the basis on which Ms Chrysanthou did not apply to have those particulars struck out. She objected, however, to particulars 11.6 to 11.8, which recite "other public statements" by the plaintiff. 15. The defendants submit that those matters are capable of informing an inference as to the views and state of mind of the plaintiff as at November 2015. Factually, the proposition is a thin one and logically, there may be an element of weakness in the reasoning but I am not satisfied that I can conclude those particulars are liable to be struck out. 16. Particulars 11.9 to 11.12 raise a different problem. Those particulars are directed to a different alleged terror attack, in Parramatta in October 2015, the burden of the defendants' point being that the plaintiff "refused to call the killing a terrorist attack". The difficulty is that, in my assessment, either the defendants will have to prove that it was a terrorist attack or else the contentions made in the particulars lose their entire sting. The prospect of there being proved in these proceedings the proposition that the shooting of the police accountant, Curtis Cheng, was a terrorist attack in my view trespasses against the principles I have outlined in that it would cause undue delay in the proceedings. Those particulars will be struck out pursuant to rule 14.28. 17. Particular 11.13 rests on a public statement made by the plaintiff in 2016. I confess it is not entirely clear to me how that statement is relied upon but, assuming it is capable of revealing an aspect of the plaintiff's attitude to terrorism, I am not persuaded that it is demonstrably irrelevant to the issues in the proceedings and on that basis would not strike that particular out. 18. Particulars 11.14 to 11.25 are directed to the plaintiff's apparent support for or at least failure to condemn Sheik Yousef Al-Qaradawi. At first blush, the case appears to rise no higher than to assert that the plaintiff visited that person and then to introduce a whole raft of apparently irrelevant contentions about that person. 19. However, the particulars conclude with the contention that, in around December 2014, the plaintiff signed a petition to Interpol to remove Sheik Al-Qaradawi from Interpol's wanted list. As submitted by Mr Hmelnitsky, I accept that it is not imponderable that the evidence to be proved in respect of those particulars might be capable of showing that the plaintiff turns a blind eye to acts of terrorism. 20. I have reached the same conclusion in respect of particulars 11.26 to 11.35 in respect of Hamas and the plaintiff's alleged visit to the Gaza Strip in December 2012. 21. On the strength of those rulings I am not persuaded that the contention is made good that, on the particulars pleaded, the truth defence in respect of imputation (b) is unarguable. The same conclusion flows in respect of the truth defence concerning imputation (f), which is governed by the same rulings. 22. As to imputation (d), the defendant relies on the same particulars as well as further particulars at paragraph 13.2, which recite statements made by public figures condemning a press release published by the plaintiff. The imputation in support of which those particulars are pleaded is that the plaintiff had so conducted himself as to warrant condemnation for refusing to denounce those who carried out the Paris terror attacks. 23. The fact that he was condemned in that way is not logically capable of informing the question as to whether his conduct warranted such condemnation. Those particulars are in my view incapable of informing the truth defence in respect of that imputation and must be struck out. 24. It remains to consider the defence in respect of the plaintiff's imputation (e) as to which, as already noted, Ms Chrysanthou submitted that the particulars are simply incapable of proving the truth of the imputation. The imputation is that the plaintiff, a religious leader, was indifferent to the horror of the Paris massacre. 25. None of the particulars goes to establish any state of mind of indifference. The position is different with the imputation which attributes the plaintiff with turning a blind eye to terrorism. Without commenting on the apparent strength of the defence, the particulars are at least capable of establishing that attribution because the material tending to show the plaintiff's attitude of explanation or discussion of the causes of terrorism could logically subject him to the criticism that in scrutinising the reasons for terrorism in that way he is turning a blind eye to its consequences. 26. Conversely, however, in my assessment there is nothing in any of the particulars capable of establishing indifference on his part to the horror of the Paris massacre. The plaintiff's submissions have persuaded me that the truth defence in respect of that imputation is unarguable and must be struck out. 27. Noting the concerns I have raised as to the form of contextual imputation A, the only remaining issue is whether the truth defence in support of contextual imputations C and D is arguable. In my view, it is, for the same reasons as the truth defence in respect of plaintiff's imputations (a) and (b) is reasonably arguable as already outlined. Orders 1. I direct the parties to provide to my Associate agreed short minutes reflecting these rulings by close of business on 22 September 2016. 2. I refer the proceedings to the Registrar's call-over list on 23 September 2016. **** Endnote 1. [2016] NSWSC 733 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: 26 September 2016