Supreme Court New South Wales Medium Neutral Citation: Mahmoud v Australian Broadcasting Corporation (No 3) [2017] NSWSC 764 Hearing dates: 9 June 2017 Decision date: 09 June 2017 Jurisdiction: Common Law Before: McCallum J Decision: Proceedings dismissed Catchwords: DEFAMATION – application by defendant to have proceedings summarily dismissed – where plaintiff a vexatious litigant – article published before that determination was made by the court – where headline wrongly stated that the plaintiff had been declared a vexatious litigant – vexatious proceedings order later made and upheld on appeal – whether defamation action by vexatious litigant based on imputation of vexatiousness vexatious Legislation Cited: Defamation List Practice Note SC CL 4, cl 13(b) Uniform Civil Procedure Rules 2005 (NSW), r 13.4 Vexatious Proceedings Act 2008 (NSW) Cases Cited: Attorney General for the State of New South Wales v Mahmoud [2015] NSWSC 899 Dow Jones and Co Inc v Gutnick [2002] HCA 56 Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 Mahmoud v Australian Broadcasting Corporation [2017] NSWSC 85 Mahmoud v Australian Broadcasting Corporation (No 2) [2017] NSWSC 763 O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 Category: Procedural and other rulings Parties: Tosson Hussein Mahmoud (plaintiff) Australian Broadcasting Corporation (first defendant) Fairfax Media Publications Pty Ltd (third defendant) Yahoo!7 Pty Ltd (eighth defendant) Claire Aird (second respondent to notice of motion) Fairfax Media Publications Pty Ltd (third defendant) PT. Kompas Cyber Media (fourth defendant) Security Business Bank of Sand Diego (fifth defendant) Facebook, Inc. (sixth defendant) Facebook Australia (seventh defendant) Yahoo!7 Pty Ltd (eighth defendant) Google Australia Pty Ltd (ninth defendant) Yahoo! Inc. (tenth defendant) Yahoo!7 Pty Limited (eleventh defendant) Twitter Inc. (twelfth defendant) YouTube, LLC (thirteenth defendant) Veooz.com (fourteenth defendant) Abix (fifteenth defendant) ANTARA (sixteenth defendant) Bakrie & Brothers Corporation (seventeenth defendant) CT Corp (eighteenth defendant) Emtek (nineteenth defendant) PT Komopas Gramedia Group (twentieth defendant) PT. Niskala Media Tenggara Company (twenty-first defendant) Media Antarkota Jaya, PT (twenty-second defendant) Sharp Corporation Headquarters (twenty-third defendant) Media Troup (twenty-fourth defendant) The MNC Media Group (twenty-fifth defendant) The Tempo Media Group (twenty-sixth defendant) Abdurizal Bakrie's Visi Asia Media Group (twenty-seventh defendant) BBC Indonesia (twenty-eighth defendant) The British Broadcasting Commission (twenty-ninth defendant) Fairfax Digital Australia & New Zealand Pty Ltd (thirtieth defendant) Representation: Counsel: Plaintiff self-represented L Barnett (first, second and eleventh defendants to amended statement of claim) L Norman, solicitor (third and thirtieth defendants to amended statement of claim) Solicitors: Australian Broadcasting Corporation (first and second defendants to amended statement of claim) Johnson Winter & Slattery (eleventh defendant to amended statement of claim) Banki Haddock Fiori (third and thirtieth defendants to amended statement of claim) File Number(s): 2015/219421 Judgment 1. HER HONOUR: These are proceedings for defamation arising out of an article originally published by the ABC under the by-line of Claire Aird. Some of the history of the proceedings is set out in my earlier judgments in the proceedings: see Mahmoud v Australian Broadcasting Corporation [2017] NSWSC 85 and Mahmoud v Australian Broadcasting Corporation (No 2) [2017] NSWSC 763. 2. As stated in the first of those judgments, the plaintiff was granted leave, after it was concluded that his pleadings were not in proper form, to file an amended statement of claim within a certain period. At that time, Mr Mahmoud was the subject of a vexatious proceedings order under the Vexatious Proceedings Act 2008 (NSW): see Attorney General for the State of New South Wales v Mahmoud [2015] NSWSC 899 per Rothman J. An appeal against that order had been heard but not determined. In those circumstances, I granted leave to Mr Mahmoud to file an amended statement of claim within 28 days after the publication of the reserved decision of the Court of Appeal. 3. The decision of the Court of Appeal was published shortly afterwards, on 15 February 2017: see Mahmoud v Attorney General of New South Wales [2017] NSWCA 12. On 31 March 2017, Mr Mahmoud sought an order extending the time for service of an amended pleading to "a non-fixed future date pending the publication of the judgment of the High Court of Australia", foreshadowing an application for special leave to appeal to that Court. I declined to make an order in those terms but extended the time for filing an amended pleading until 28 April 2017. Mr Mahmoud filed an amended statement of claim within the extended time allowed. It is that pleading which is the subject of three applications heard in the defamation list last Friday. This judgment determines those applications. 4. The amended statement of claim names 30 defendants. The first application considered last Friday was an application brought on behalf of the third and thirtieth defendants named in that pleading. It should be noted, in case it causes confusion in any future proceedings, that the numbering of those defendants does not match that of earlier pleadings. The relevant parties will accordingly have a different identification on JusticeLink. The third and thirtieth defendants named in the amended statement of claim are Fairfax Media Publications Pty Ltd, the publisher of the printed edition of the Sydney Morning Herald, and Fairfax Digital Australia & New Zealand Pty Ltd, the publisher of that newspaper on line. Those parties are represented by Ms Norman. 5. Ms Norman submitted that the claim as against her clients should be dismissed on the basis that no reasonable cause of action is disclosed in the amended pleading. She reminded me that I had previously ruled on a similar argument in respect of the party now named as the third defendant in my first judgment (cited above) at [24] to [25] where I said: 24. I turn to consider the position of Fairfax. Ms Norman submitted that the claim against it is hopeless, since the pleading identifies no publication at all that might be attributed to that entity as a publisher. The highest the case is put is at page 12 of the attachment to the notice of motion as filed on the Court file (I note that the pagination of the document served on the parties is different). What appears on that page is the following: The third defendant Fairfax Media Publications Pty Ltd. I searched the Website of the State Library [name of Website included] for publication of the defamatory matter on the Sydney Morning Herald in the printed newspapers and on the Internet. I found a long list of entries showing news about me. The first one is 'Serial litigant Tosson Mahmoud fights New South Wales Government move to block him from courts'. I clicked on it and the full defamatory text of the whole article published by Claire Aird of the ABC on 24 July 2014 appeared with a big photo of mine as displayed above. 25. In his oral submissions today, Mr Mahmoud confirmed that it is his contention that the article published by Claire Aird of the ABC was replicated verbatim and in full in the printed edition of the Sydney Morning Herald on 24 July 2014. The matter as presently pleaded is plainly bad in form. More importantly, according to the material brought forward by Mr Mahmoud in support of his application, it was not until 25 July 2014 that the article appeared in the Sydney Morning Herald under the heading identified. The prospect that the Sydney Morning Herald in its printed edition published verbatim and in the same form an article first published by the ABC the following day must be dismissed as fanciful. In my view, the claim against the publisher of the printed edition of the Sydney Morning Herald has been demonstrated by Ms Norman's submissions to be hopeless. The motion and the proceedings as against that entity must be dismissed. 1. In the course of preparing this judgment, I have realised that the wording of the second paragraph set out above is potentially confusing. What I meant to record was that, according to the material brought forward by Mr Mahmoud in support of his application for injunctive relief, the version of the ABC article allegedly republished in the Sydney Morning Herald on 24 July 2014 had not appeared in that form on the ABC website until the following day. In other words, the case as pleaded entailed a temporal impossibility. 2. The element of publication is now pleaded in the amended document at pp 10 and 24. At p 10 Mr Mahmoud has contended as follows: All the other defendants from the third to the 30th have copied in their media, newspapers, radio and television stations and on their videos and websites the same articles published by the first and second defendants as shown in Schedules A, B and C and therefore all what is stated above including all the pleadings and particulars, loss and damage and the aggravated damage in regard to the first and the second defendant apply to all those other defendants… 1. The only other reference to the Fairfax parties is at p 24 as follows: I searched the website of the State Library [name of website included] for publications of the defamatory matter on the Sydney Morning Herald in the printed newspapers and on the Internet; I found a long list of entries showing news about me. The first one is "Serial Litigant Tosson Mahmoud fights NSW Government move to block him from courts". I clicked on it and the full defamatory text of the whole article published by Claire Aird of the ABC on 24-07-14 appeared together with a big photo of mine as displayed above. 1. Ms Norman submitted, with some force, that the new pleading almost exactly replicates the previous pleading considered in my earlier judgment. As to the temporal impossibility, Mr Mahmoud suggested that, if there is an anomaly of the kind adverted to in my earlier judgment at [25], it is to be explained by international time differences. Whether or not that makes sense, the principal difficulty is the impossibility for the Fairfax parties of identifying any properly pleaded publication of the Claire Aird article by any Fairfax entity. 2. Ms Norman submitted, in effect, that it is impossible to identify what case the Fairfax parties have to meet, there simply being no adequate or comprehensible pleading of a cause of action against either of those parties. In the face of that submission, I requested Ms Norman to address the requirement of clause 13(b) of the Practice Note SC CL 4, which requires a defendant to an action for defamation to say at the first listing whether the element of publication is admitted. Ms Norman informed the Court that, after inquiry, each of her clients denies publishing the article. 3. Publication in the form pleaded is inherently unlikely. The article was written under the by-line of an ABC journalist and was originally published by the ABC. There is no pleading or evidence to suggest any syndication between the ABC and the Fairfax parties. The overwhelming likelihood is that Mr Mahmoud's belief that the Fairfax parties have republished the Claire Aird article in the manner pleaded at p 24 of the amended statement of claim arises from a misconception on his part based on a misunderstanding of the results of his search at the State Library. In any event, I am satisfied by reference to the matters argued by Ms Norman that the pleading discloses no reasonable cause of action against the Fairfax parties. 4. During argument last Friday, Mr Mahmoud sought an opportunity to provide further particulars of what it was that he downloaded at the State Library in the manner stated at p 24 of the pleading. I had intended to reserve determining his entitlement to have that opportunity, depending upon the outcome of this and the two other applications argued last Friday. But in any event this afternoon, at the point when I was about to start giving these reasons orally, Mr Mahmoud sought to put that material before the Court. I allowed that course. 5. Mr Mahmoud tendered a document which I have marked "Exhibit A" with today's date. He says that document shows what he did when he went to conduct the search referred to at p 24 of the pleading. The document does not shed any further light on the issue and in my view rather confirms my apprehension that Mr Mahmoud may have brought the proceedings, at least as against the parties other than the ABC parties, on the strength of a misconception as to the results of his search. It certainly goes no way to answering the concerns raised by Ms Norman. 6. For those reasons, the orders sought by Ms Norman should be made, that is, pursuant to r 13.4 of Uniform Civil Procedure Rules 2005 (NSW), the proceedings as against the parties named as third and thirtieth defendants in the amended statement of claim filed 28 April 2017 must be dismissed with costs. 7. The second application heard last Friday was argued by Ms Barnett on behalf of Yahoo!7 Pty Ltd. Ms Barnett submitted that Mr Mahmoud had failed to provide particulars of any downloading of the matter allegedly published by Yahoo!7. 8. The pleading against Yahoo!7 does not suffer from the difficulties argued by Ms Norman on behalf of the Fairfax parties, it being at least within the realms of imagination that the ABC article might be able to be downloaded via Yahoo!7, although I note that is not the manner in which the case is presently pleaded. The pleading reveals that the availability of the ABC article for downloading via Yahoo!7 was identified by Mr Mahmoud by a search he conducted himself. In other words, the pleading presently identifies only publication to the plaintiff and not to a third party. 9. During the course of argument last Friday, I explained to Mr Mahmoud the effect of the principles stated in the decision of the High Court in Dow Jones and Co Inc v Gutnick [2002] HCA 56, namely, that in order to establish the element of publication in a case involving material on the internet, it is necessary for the plaintiff to establish that the material was downloaded. As with the first application, Mr Mahmoud again sought an opportunity to obtain information about a person who may have downloaded the relevant publication and to provide further particulars. 10. As in the case of Ms Norman's application, it had been my intention to defer determining whether to allow those particulars to be provided pending my determination of the third application heard last Friday, but again Mr Mahmoud sought to provide that material before I proceeded to give judgment this afternoon. Mr Mahmoud first handed up a collection of notes on the judgment in Dow Jones v Gutnick. I have read his document. It does not take the issue any further than what I identified to Mr Mahmoud last Friday, namely, that at the hearing of the proceedings, if they were allowed to proceed, it would be necessary for him to prove, either by inference or by calling a witness, that the matter had been downloaded in some manner capable of establishing the liability of the relevant defendant. 11. Mr Mahmoud has not today provided any further particulars of that kind but has stated from the bar table that he has found a witness who is a person who downloaded the article as allegedly published by Yahoo!7. It is appropriate for present purposes to proceed on the assumption that Mr Mahmoud would, if required, be able to give the necessary particulars. Before determining whether to allow an opportunity for that to occur, it is appropriate first to determine the third application heard last Friday, an application brought by the ABC and the journalist, Claire Aird. 12. Those parties filed a notice of motion on 23 May 2017 seeking the following relief: Subject to order 2, an order pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008 (NSW) (the Act) that the proceedings be stayed until such time as the plaintiff obtains leave to continue these proceedings. An order pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), that these proceedings be dismissed on 2 September 2017 in the event that the plaintiff has not been granted leave to continue the proceedings. Alternatively to orders 1 and 2, an order pursuant to r 13.4 of the UCPR that these proceedings be dismissed as frivolous or vexatious. Alternatively to orders 1 to 3, an order pursuant to r 14.28 of the UCPR that the amended statement of claim filed on 28 April 2017 be struck out on the basis that it has a tendency to cause prejudice, embarrassment or delay in the proceedings. 1. Orders 1 and 2 raise a question, which is not without complexity, as to the proper application of the Vexatious Proceeding Act. At the time of publication of the ABC article, proceedings had been brought by the Attorney General for the State of New South Wales against Mr Mahmoud seeking orders under the Vexatious Proceedings Act but those proceedings had not yet been heard. 2. Taking the pleading against the ABC parties at its highest in favour of Mr Mahmoud, the case asserted is that the ABC article which discussed those proceedings was, for at least a short period of time (it appears one day), published under a headline which erroneously stated that Mr Mahmoud had, as at the date of the article, been declared a vexatious litigant "by the New South Wales Government". In fact, the correct legal position was that an application for such a declaration, or for orders to like effect, had been brought by the New South Wales Government but not yet determined. The question whether a person is to be the subject of orders under the Vexatious Proceedings Act is, of course, one for the court, not the Government. No relevant order or declaration had been made at the time of the article. 3. These proceedings were commenced after the Vexatious Proceedings Act proceedings were heard but before they were determined. In those circumstances, the ABC parties seek to contend that these proceedings should be stayed until such time as the plaintiff obtains leave to continue them under the Vexatious Proceedings Act. Although the Court of Appeal expressly carved out of the vexatious proceedings orders against Mr Mahmoud any stay of any existing proceedings, Ms Barnett submitted that this Court could, in accordance with the regime of that legislation, appropriately visit upon Mr Mahmoud the obligation to satisfy the Court in the Vexatious Proceedings Act proceedings that he should have leave to continue these proceedings. 4. I took the view that that analysis of the issue might well be wrong and was, in any event, of doubtful utility. Ms Barnett submitted that such an approach would put an onus on Mr Mahmoud, giving effect to the finding of the Court of Appeal, to persuade the Court as to the viability of the proceedings. But even if that were the case, ultimately the question would be whether these proceedings have any reasonable prospects of success or whether a reasonable cause of action is disclosed or whether these proceedings are vexatious. The same kinds of considerations, perhaps with subtle nuances, would be determinative. 5. Accordingly, with the object of addressing the real issue raised by the application, I invited Ms Barnett rather to address the third prayer for relief, which seeks an order that these proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules as frivolous or vexatious. It could equally be open under that rule to dismiss the proceedings on the basis that no reasonable cause of action is disclosed. 6. As recorded in my earlier judgment, Mr Mahmoud has identified a number of imputations, but I accept Ms Barnett's submission that the burden of the claim is that he was described as having been declared vexatious at a time before a decision to that effect had been made. 7. Mr Mahmoud submitted that the article is more serious than that in that it describes him as a "serial litigant". He submitted that the use of the word "serial" conveys a more sinister connotation than the word "vexatious", suggesting he is in the nature of a serial killer. I do not accept that submission. In my view, the word "serial" in that context means nothing more serious than the word "vexatious". A vexatious litigant is, in accordance with the legislation, a person who frequently, that is, serially, brings proceedings that are an abuse of the process of the court or are without merit. 8. The decision of the Court of Appeal conclusively determines that, by reference to evidence that existed as at the date of the publication of the ABC article, Mr Mahmoud is exactly such a person and is properly described as a vexatious litigant. Mr Mahmoud submits that the decision of the Court of Appeal is not final. His understanding of the law is in that respect misconceived. Whether the decision is properly described as final or interlocutory, it binds both Mr Mahmoud and me. 9. Mr Mahmoud informed me from the bar table that he has filed an application for special leave to appeal to the High Court. Juridically, that has no impact on the existing order of the Court of Appeal. In any event, I would consider it unlikely that special leave will be granted. But even if I am wrong in that respect, the fact remains that the decision of the Court of Appeal stands. 10. As already explained, the burden of Mr Mahmoud's defamation action is that, as at the date of the article, the ABC described him as a person who had been declared to be a vexatious litigant. The obvious defence to the proceedings would be that, as at the date of the article, that was true in substance. That is incontrovertible, having regard to the decision of the Court of Appeal. The hurdle that decision poses to Mr Mahmoud can be analysed in one of two ways. 11. First, it can confidently be concluded at this point that the proceedings are manifestly hopeless and have no prospects of success because the truth defence would necessarily succeed. That is not a matter of speculation or preemption of the evidence that might be adduced but the inexorable conclusion on a proper analysis of the effect of the Court of Appeal's decision. 12. Approaching the same issue in a different way, to allow the action to proceed would controvert the decision of the Court of Appeal, which would be an abuse of process since it would permit the re-litigation by a different tribunal of fact of the question determined by that Court: see O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 at [121] per Beazley P; McColl JA and Tobias AJA agreeing at [131] and [243]. 13. In any event, for the reasons I have stated, I am satisfied that the proceedings must be dismissed. In the circumstances, there is no utility in allowing time for Mr Mahmoud to provide further particulars as sought during argument, although I note he has in fact used the period of one week during which this decision was reserved to do just that. 14. Further, there is no utility in allowing the proceedings as against the 25 defendants who were not represented last Friday (who were all called three times outside the Court) to proceed. The proceedings as against those parties would necessarily be dismissed for the reasons I have stated in respect of the five defendants who have been represented in the proceedings thus far. 15. In the result, the proceedings must be dismissed with costs in favour of those defendants who have appeared in the proceedings. ********** Amendments 15 June 2017 - Amendment to solicitor details on coversheet 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: 15 June 2017