District Court New South Wales Medium Neutral Citation: Khalil v Nationwide News Pty Limited (No. 2) [2018] NSWDC 126 Hearing dates: 10 May 2018 Date of orders: 17 May 2018 Decision date: 17 May 2018 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Defendant's application for summary dismissal of the proceedings dismissed. (2) Pursuant to UCPR r 28.2, imputations 3(a), 3(d), 3(b) and 3(e) are reasonably capable of being conveyed. (3) Pursuant to UCPR r 14.28, imputations 3(c) and 3(f) are struck out with leave to replead. (4) Pursuant to UCPR r 28.2, imputations 5(a), 5(b), 5(c), 5(d), 5(e) and 5(f) are reasonably capable of being conveyed. (5) Costs reserved with liberty to apply. Catchwords: TORT – defamation – application for summary dismissal of proceedings – whether first matter complained of capable of giving rise to any imputations defamatory of the plaintiff – second matter complained of archived by the defendant and available only upon search – whether second matter complained of published only to persons "in the plaintiffs' camp" – application for summary judgment dismissed in relation to both publications – rulings on capacity – form of imputations – use of the word "involved" Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3 and 56 – 62 Defamation Act 2005 (NSW), s 33 Evidence Act 1995 (NSW), s 75 Oaths (Children) Amendment Act 1990 (No. 93) (NSW), s 33 Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 28.2, 31.1, 31.2 and 31.4 Cases Cited: Accommodation West Pty Ltd v Aikman [2017] WASC 157 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274 Barach v University of New South Wales [2011] NSWSC 431 Bleyer v Google Inc (2014) 88 NSWLR 670 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 Bristow v Adams [2012] NSWCA 166 Budu v British Broadcasting Corporation [2010] EWHC 616 (QB) Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Cush v Dillon; Boland v Dillon (2011) 243 CLR 298 Cush v Dillon; Boland v Dillon [2010] NSWCA 165 Desfosses v Martinson [2018] WASC 114 Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Enders v Erbas Pty Ltd [2014] NSWCA 40 Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 Gant v The Age Co Ltd [2011] VSC 169 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Ghosh v MSN Nine Pty Ltd (2015) 90 NSWLR 595 Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 Google Inc v Duffy [2017] SASFC 130 Habib v Radio 2UE Pty Ltd [2009] NSWCA 347 Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 Hepburn v TCN Channel Nine [1984] 1 NSWLR 386 Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 Hibbert v Nationwide News Pty Ltd [2015] NSWCA 13 Jones v Sutton (2004) 51 NSWLR 614; [2005] NSWCA 205 Khalil v Fairfax Media Publications Pty Ltd [2017] NSWDC 346 King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117 Lim v TVW Enterprises Pty Ltd [2002] WASC 214 Ma Ching Kwan v John Fairfax Publications Pty Ltd [1998] NSWSC 321 Manefield v Child Care NSW [2010] NSWSC 1420 McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 McDonald v Dods [2017] VSCA 129 Moran v Schwartz Publishing Pty Ltd (No 6) [2016] WASC 168 Pickering v Publishing & Broadcasting Pty Ltd (Supreme Court of NSW, Levine J, 21 June 1996) Shea v News Ltd (No 2) [2016] WASC 146 Skalkos v Assaf [2002] HCATrans 649 Skalkos v Assaf [2002] NSWCA 14 Tajjour v New South Wales (2014) 313 ALR 221 Toben v Nationwide News Pty Ltd [2016] NSWCA 296 Trantum v McDowell [2007] NSWCA 138 Voller v Fairfax Media Publications Pty Ltd [2018] NSWSC 608 Wagner v Nine Network Australia Pty Ltd [2017] QCA 261 Watney v Kencian [2017] QCA 116 Zarth v Williamson [2006] NSWCA 246 Texts Cited: P. Taylor, Dr E. Elms, M. Meek SC, The Hon Justice G. Bellew, Ritchie's Uniform Civil Procedure NSW (LexisNexis, Australia) Category: Procedural and other rulings Parties: First Plaintiff: Khalil Khalil Second Plaintiff: Hassan Soueid Defendant: Nationwide News Pty Limited Representation: Counsel: Plaintiffs: Mr R Rasmussen Defendant: Mr M Lewis Solicitors: Plaintiffs: Peter Erman Defendants: Banki Haddock Fiora File Number(s): 2017/306358 Publication restriction: None Judgment The defendant's applications 1. This is an application by the defendant in these proceedings to strike out the matters complained of in these proceedings as an abuse of process or alternatively to hold that imputations pleaded are incapable of being conveyed. 2. The basis for the application for summary dismissal is different for each of the publications, although there is some overlap. These reasons are: 1. The challenge to the first matter complained of is that it is incapable of giving rise to any defamatory imputation and should be summarily dismissed, conformably with the principles enunciated in Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 (although it should be noted that this decision, despite being commonly cited in such applications, in fact was a ruling following a trial, and not sought summarily). 2. The challenge to the second matter complained of is that publication of this archived 8 November 2013 online news report is only to third persons who, the defendant submits, would have had to look hard for it, meaning that publication is "unrealistic" and that, by application of the principles of proportionality, this cause of action should be struck out. The parties' submissions 1. The plaintiff's submissions consist largely of relying upon the current law in relation to abuse of process issues in defamation law. 2. The defendant has served four sets of submissions (29 November 2017, 6 December 2017, 9 February 2018 and 14 February 2018). In the course of those submissions, the basis of the argument has been augmented from a general argument as to proportionality to include an assertion that any publication to a third party in relation to the second matter complained of is "unrealistic" (submissions, 14 February 2018, paragraph 234-241) or alternatively that the proceedings should be struck out on the basis that the newly pleaded second publication was published only to close friends and relatives, all of whom belong to what is called "the plaintiffs' camp", relying upon the principles of proportionality set out in Bleyer v Google Inc (2014) 88 NSWLR 670. 3. The delay in the argument coming to court has in part been due to the changing position of the defendant, particularly following the addition of the second matter complained of, and partly because of delays in relation to the filing of evidence. 4. The argument in relation to the first matter complained of proceeded on the basis of general legal principles for summary dismissal on the basis that no defamatory imputation was capable of being conveyed. The argument in relation to the second matter complained of, however, relied upon evidence of archiving practices by the defendant and evidence of searches made by witnesses for the plaintiff. 5. In the course of argument, Mr Lewis appeared to include the first matter complained of as being one made to a limited audience in much the same way as the second, although this was not stated in terms in his written submissions. If that is so, I formally note that, for the same reasons as those referred to in relation to the second matter complained of, I would dismiss any application which challenges the extent of publication of the first matter complained of. 6. The first matter for consideration is the defendant's application for summary dismissal of the second matter complained of on the basis that publication is "unrealistic". The parties' evidence 1. The defendant relies upon two affidavits sworn by Leanne Norman on 14 February 2018. The contents of those affidavits mirror similar evidence given by Ms Nicola Cain of counsel in Budu v British Broadcasting Corporation [2010] EWHC 616 (QB) (see in particular paragraphs 3-11). Mr Rasmussen tendered an affidavit of the first plaintiff sworn 14 March 2018 and two affidavits from the second plaintiff's teenage sisters, Rana and Rania, which were signed by them on the same day. 2. A preliminary matter for determination during the application was the challenge to the giving of evidence by the second plaintiff's two sisters by statement. Evidence of witnesses at interlocutory hearings 1. The second plaintiff's sisters' statements were served on or about 15 March 2018, as was the first plaintiff's affidavit. 2. On 24 April 2018, the solicitors for the defendant wrote to the plaintiffs' solicitors making the following objection to that evidence: "We refer to the plaintiffs' "evidence" served on the defendant on 14 March 2018. We note that the plaintiffs intend to rely upon: an affidavit of Mr Khalil and two "statements" from Mr Soueid's sisters. As you will no doubt be aware, UCPR 31.2 requires that, unless otherwise ordered, all evidence should be adduced by way of affidavit evidence. Clearly enough, the "statements" served on the defendant are not affidavits for the purposes of UCPR Part 35. Accordingly, and to the extent that the plaintiffs seek to rely on these "statements" on 10 May 2018, the defendant will object to them being read and, consistent with the above, the defendants will further oppose any application to adjourn the argument on 10 May 2018 to rectify any deficiencies/irregularities of the "statements"." 1. Rule 31.2 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides: "31.2 Evidence of witnesses at other hearings Subject to rule 31.1, evidence in chief of any witness at any hearing must be given by affidavit unless the court orders otherwise." 1. Rule 31.1 UCPR relates to the manner of giving evidence at trial. As is set out in the notes to Ritchie's Uniform Civil Procedure NSW, that rule contemplates that witnesses will give oral evidence at the trial in proceedings commenced by statement of claim, whereas evidence in chief in proceedings commenced by summons, to which UCPR r 31.2 also applies, is ordinarily given by way of affidavit. 2. There is no doubt that the court may direct a party to furnish a witness statement as opposed to an affidavit; this is the whole purpose of r 31.4 UCPR. Many courts prefer to order the exchange of statements; I note in particular that Practice Note SC CL 5 in the Supreme Court, which applies to proceedings other than defamation claims (where evidence in chief is given orally), contemplates that these directions are the ones which will be made. 3. However, as Ritchie's Uniform Civil Procedure NSW goes on to state, these rules should be viewed with "the broadest generality". All of the rules relevant to the giving of evidence set out in UCPR Pt 31 contemplate that the court has "a general discretion to order that evidence in chief be either in the form of an affidavit or a witness statement" (at [31.1.10]). It is helpful to set out the relevant paragraphs of Ritchie's Uniform Civil Procedure NSW in full: "[31.1.10] Discretion to order written evidence in chief The present rule contemplates that witnesses will give oral evidence in chief at the trial of statement of claim proceedings. Conversely evidence in chief in summons proceedings will ordinarily be on affidavit: see UCPR r 31.2, [35.1.10] and [35.2.25]. The underlying differentiation between statement of claim and summons proceedings may be of the view that the former, but not the latter, are likely to involve significant factual disputes, and are best resolved by oral evidence: see UCPR r 6.4(4)(b). But this view reflects only the broadest generality and, as both the present rule and UCPR r 31.4 contemplate, the court has a general discretion to order that evidence in chief be either in the form of an affidavit or a witness statement. The existence of that discretion, and its frequent exercise, reflects another general view that the pre-hearing exchange of written evidence in chief (affidavit or witness statement) can significantly contribute not only to the efficiency and the fairness of the trial hearing but also to the prospect of earlier settlement of the parties' claims. These prospective advantages encourage exercise of the discretion to order service of witness statements: Saad v New South Wales [2013] NSWSC 154; BC201301061 at [50]–[57] per Garling J (witness statements ordered despite objections regarding cost and expense); and see [31.4.5]. But the enthusiasm for the use of affidavit evidence and witness statements is occasionally tempered by realisation that written evidence is sometimes an unsatisfactory medium for evidence-in-chief on contentious issues. That realisation stems from the likelihood that formal affidavits and witness statements will often use the vocabulary of, and will have been structured and edited by, the parties' legal advisers. Such a process will inevitably involve highly motivated recollections and modes of expression that, as a matter of objective fact, may actually be unreliable and unintentionally misleading. It takes no great scepticism to appreciate that in some situations a court may have greater confidence in, or ability to evaluate, a witness' unassisted, unprompted and individual recollection orally recounted in the witness box, than the sculptured and supervised text of an affidavit or witness statement: Thomas v SMP (International) Pty Ltd [2010] NSWSC 822; BC201005238 at [23]–[29] (extremely lengthy affidavit — extensive objections — affidavit rejected): see also "Practical Litigation in the Federal Court of Australia — Affidavits" (2001) 20 Australian Bar Review 28." 1. These provisions are also subject to the following further discretionary factors. 2. First, there is the additional factor that s 75 Evidence Act 1995 (NSW) provides that the hearsay rule does not apply to interlocutory proceedings if the source of evidence is able to be given. Evidence on an interlocutory application may correspondingly be tendered in a more informal fashion than at a hearing. 3. Second, defamation proceedings almost invariably proceed by the giving of oral evidence. This means that the requirement of written evidence in any form, let alone affidavits or witness statements, is very much the exception rather than the rule. Statements, rather than affidavits, have been considered to be appropriate in certain circumstances, such as where justification is an issue (Moran v Schwartz Publishing Pty Ltd (No 6) [2016] WASC 168), where the matter complained of is a slander (Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274), or where the trial is a non-jury trial and there are other relevant factors, such as a plaintiff who is a minor. The general preference, where evidence in chief is to be given in a defamation trial other than viva voce, has been for statements, rather than affidavits, for the reasons explained by Kenneth Martin J in Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117. 4. Additionally, particular care is taken in defamation actions brought by minors, for the reasons explained by Kenneth Martin J in Shea v News Ltd (No 2) [2016] WASC 146, which brings me to the third special factor, namely that the two persons giving these statements are, I am informed, teenagers still at school. 5. Whether the proceedings are for defamation or not, courts are acutely aware of the need for sensitivity in the case of children giving evidence. The court's concern about the undesirability of children giving affidavits has long been the subject of careful regulation, such as the Oaths (Children) Amendment Act 1990 (No. 93) (NSW) (repealed), which provided in s 33 that a child may make a declaration instead of an oath in civil as well as criminal proceedings. Under the Civil Procedure Act 2005 (NSW), a child is defined in s 3 as a "person under legal incapacity" in relation to the conduct of legal proceedings. 6. Individually, any one of these bases would be a sufficient ground for exercising the discretion of the court to permit the evidence of these two teenagers by statement. Collectively, it is hard to imagine a clearer case for the exercise of discretion. 7. Mr Lewis submitted that it was too late for this issue to be raised at the hearing of the application and that such leave should have been sought beforehand. 8. That is not an attractive argument coming from a defendant who notified the plaintiffs of this objection over a month after the statements were served and in a comparatively short period of time before the hearing of this application. Nor do I regard it as significant that the plaintiffs' solicitors failed to reply to the letter raising this issue. They were entitled to ask the judge to deal with this issue pursuant to r 31.2 UCPR at the hearing of the application, not least because there has been no application to cross-examine the witnesses in question. 9. Accordingly, for these reasons, I refused the defendant's challenge to the admissibility of the statements of the two witnesses and allowed these into evidence. The plaintiffs' evidence of publication 1. The plaintiffs have particularised publication as follows: 1. Some of the persons who read the matters complained of knew the first plaintiff, Mr Khalil. Four of the persons are identified as his friends. One is his wife. Reference is also made to school children at Kogarah Public School. 2. Some of the persons who read the matters complained of knew the second plaintiff, Mr Soueid, such as his two sisters (who have provided statements), two cousins, a former brother-in-law and friends of his family, such as one of the children at Kogarah Public School who is specifically named. 3. The extent of publication at the school resulted from children there who saw the Channel 7 video and did an internet search. The evidence of Mr Soueid's sister Rania is that this video, which she first saw on Facebook in November 2016, showed up "in my Facebook feed again" in July 2017. Each time she searched online for other material and came upon the second matter complained of. Her younger sister Rana, by comparison, was shown printouts by other students. Both girls say that other students accused their brother of being a gang member. 4. There is also reliance upon the grapevine effect. The defendant's evidence in relation to archiving of online publications 1. The second matter complained of was published on 8 November 2013. It is actionable because it remains online in archived form. This means that the document cannot be found unless a search containing matters of some particularity are set out. 2. The way this archiving procedure works, as used by other publishers, is described in Budu v British Broadcasting Corporation at [9]-[11]: "9. The BBC's system of archiving pages, from its BBC News website is explained in a witness statement dated 4 February 2010 by Nicola Cain, a barrister employed by the BBC. The news content of the website is replaced and updated on a daily basis. It remains accessible via links on the front page for a short period only after it is replaced. After that, the articles are only accessible by conducting a search. The BBC does not selectively archive material from its website; all news stories are automatically archived in that way. In the absence of a specific reason to do so (for example so as to comply with a court order) the BBC does not edit archived content, nor does it attempt to amend, update or otherwise review archived articles. The scale of the material involved would make it impractical to do so. 10. In this case, the links to the articles are likely to have been removed from the Cambridgeshire section of the website a matter of weeks after the original publication dates in 2004. Thereafter, the articles will only have been accessible by a search. 11. In those circumstances, it follows that the ambit of this action concerns the publication by that means (i.e. retrieval by search) of archived news articles four years and more after their original publication; and, in addition, the publication of a Google snippet created when a search is done." 1. The procedure in relation to the website the subject of these proceedings is described in paragraph 3 of Ms Norman's affidavit of 14 February 2018 as follows: "3. I am informed by Marlia Saunders, Senior Litigation Counsel (in-house) for the defendant, and believe that: (a) stories published on [The Daily Telegraph] Website appear under one of a number of tabs; (b) a story like the second matter complained of would usually appear under the News > NSW tab: http://www.dailytelegraph.com.au/news/nsw; (c) at any given time, around 30 current stories appear under each tab on the Website; (d) stories that appear under the News > NSW tab are uploaded as an auto-feed, so the latest stories appear at the top of the page; (e) in 2013, the defendant published around 110 stories per day on the Website; (f) approximately half of the stories published on the Website are uploaded at midnight, and half are uploaded during the course of the day; (g) as news stories are uploaded, the older stories fall off the page and are automatically archived; stores only stay on the Website for around one day; (h) once stories are archived, the only way to find them is via a search engine, such as Google; (i) archived stores can be found by searching for the name of a person referred to in the story, or by searching the headline (if known), but the search results returned will depend on the algorithms used by the search engine; (j) once a story is published, it will generally only be edited or updated if it is a breaking news story, in which case it may be updated as developments occur throughout the course of the day on which it is first published; (k) if there are any significant changes to a story once it is archived, a new story would be created, rather than the old one updated." 1. Mr Norman carried out searches on 14 February 2018 with the following results: "4. On 14 February 2018, I conducted a Google search of the name "Khalil Khalil". I examined the first ten pages of search results. The second matter complained of did not appear in those results. 5. On 14 February 2018, I conducted a Google search of the name "Hassan Soueid". I examined the first ten pages of search results. The second matter complained of did not appear in those results. 6. On 14 February 2018, I conducted a Google search of the headline of the second matter complained of. The second matter complained [sic] was the first item listed in the search results." 1. Copies of these searches are attached to Ms Norman's second affidavit. 2. Whether a document is accessible, or likely to be accessed, is essentially a fact-driven exercise. The facts in Budu v British Broadcasting Corporation were as follows: "30. As I have already indicated, these are inter-related, and are relevant to the remainder of the applications. The BBC's contentions in summary are these. i) The BBC does not contend the first article, if read in isolation, is incapable of bearing the pleaded meanings attributed to it by the Claimant. It contends that the first article will only have been published to those who also read the second and third articles for the reasons I have already explained; and that when read in the context of the other articles, the first article is incapable of bearing the meanings attributed to it by the Claimant (as originally pleaded, or by way of a proposed amendment); ii) Second, that the second and third articles are incapable of bearing the meaning attributed to them as well; iii) Third, that the BBC is not liable for the Google snippet, in particular since it is not arguable that it "republishes" any defamatory allegation made by the BBC in the second article; iv) Fourth, that the residual defamatory meanings (if any) left to the Claimant are unarguably true; v) Fifth, that in any event, and in all the circumstances (including that since July 2009 Loutchansky notices have been attached to the articles complained of), the action should be struck out as an abuse of the process." 1. I pause to note that this quite circuitous method Mr Budu had to use to claim he was identified in the later publications is very different from the much more straightforward factual situation here. The first matter complained of refers to the plaintiffs by name and is, on a capacity basis, able to convey an imputation of the same or similar nature to the second matter complained of. It is not necessary to read them together, or to read them both. 2. There can be no doubt that the imputation of gang membership is conveyed by paragraph 19 of the publication which is Annexure B to the statement of claim, namely the earlier 2013 publication, which is as follows: "Four other members of the Sydney gang were also charged yesterday over a shooting of three rival gang members, Abdul Abu-Mahmoud, Hassan Soueid and Khalil Khalil, outside the Chokolatta cafe at West Terrace, Bankstown, after midnight yesterday." 1. Paragraph 20 adds a reference to "heightened security" when the four members of the Sydney gang are in the Local Court seeking bail, with the accused being "flanked by four bulletproof vest wearing guards as they sat in the dock". The matter complained of refers to one of the accused having to be refused bail even though he needs medical attention for his injuries because of the danger to the community. A vivid picture of a gang torn by murderous rivalry is painted, in the context of which both plaintiffs are clearly identified as gang members. Application of these principles to the facts in these proceedings 1. I first note that the defendant has not sought determination of publication as a separate question of law (unlike the procedure adopted in Voller v Fairfax Media Publications Pty Ltd [2018] NSWSC 608). This means that I am not considering the evidence in a separate trial on the issue of publication, but determining a summary dismissal application. 2. As to the extent of publication beyond persons in "the plaintiff's camp", Mr Rasmussen asks me to take into account that finding witnesses who read a publication and are prepared to come forward is never easy, and that in many of the cases which come before the court, evidence of a very limited nature is often the best that can be done. In such circumstances, the court may draw an inference that publication on the internet will be seen by a larger number of persons (see, for example, Google Inc v Duffy [2017] SASFC 130 at [366] per Peek J, referring with approval to the first instance judgment on this issue, and McDonald v Dods [2017] VSCA 129). This difficulty has long been widely accepted as one of the relevant features to take into account when determining the awarding of damages, as the plaintiff does not know how widely the defamatory publication has spread and may not have evidence of changes of attitude or shunning behaviour by those who saw or heard the defamatory publications (McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 108). 3. The phrase "the plaintiff's camp", as used in the defendant's submissions, is drawn from [17] of Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75 ("Jameel principles"), where Lord Justice Phillips MR noted that only five persons had read the matter complained of and that all five were "members of the claimant's camp, to put the matter colloquially". The relevance of absence of publication beyond "the plaintiff's camp" is that the lack of proportionality between the costs of defamation proceedings with the protection of the plaintiff's reputation may warrant dismissal of the proceedings entirely. 4. The first issue is whether the principles set out in this decision, although endorsed by McCallum J in Bleyer v Google Inc and the subject of obiter approval by Basten JA in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 at [5], have been accepted as applicable in Australia as concepts of abuse of process based on Jameel principles and/or ss 56 – 62 Civil Procedure Act 2005 (NSW). Mr Lewis argues that, notwithstanding judgments apparently to the contrary and the lack of appellate sanction, the Jameel principle now forms part of the Australian common law and should be applied in cases such as the present. 5. There is, however, significant appellate authority which is not in accordance with this submission. I particularly note: 1. The earliest appellate decision to consider abuse of process based on the Jameel principles and/or the applicability of the provisions of the Civil Procedure Act 2005 (NSW) contained trenchant criticism of both these proposals: Habib v Radio 2UE Pty Ltd [2009] NSWCA 347 at [119] – [120], [129] – [141], [146] – [157] and [210]. 2. Caution has continued to be expressed at appellate levels, most recently in Watney v Kencian [2017] QCA 116 at [56], where Applegarth J noted the warning of Macfarlan JA in Ghosh v MSN Nine Pty Ltd (2015) 90 NSWLR 595 at [44] that "the dismissal of proceedings simply upon the basis of a lack of proportionality, without the presence of further facts favouring that result, is likely to be justified only rarely." 3. Appeals involving limited publication have not resulted in any consideration of these issues. Even where publication was restricted to the other plaintiffs, as occurred in Zarth v Williamson [2006] NSWCA 246, publication was still held to have occurred. The same is the case where the publication was made only to the other joint tortfeasors, as occurred in Trantum v McDowell [2007] NSWCA 138, where Tobias JA (his colleagues concurring) held that publication was still made out. 4. Appeals based on proportionality where abuse of process on grounds other than limited publication is relied upon have not enjoyed success either: Toben v Nationwide News Pty Ltd [2016] NSWCA 296. 5. While Basten JA's obiter observations appear to favour of the principles of proportionality in Farrow v Nationwide News Pty Ltd at [5], his Honour expressed less favourable views in Bristow v Adams [2012] NSWCA 166 at [41], and those earlier views were supported by Tobias A-JA and Beazley JA (as her Honour then was). 6. The reasons given by Basten JA in Bristow v Adams, namely that proportionality gives the s 33 defence (Defamation Act 2005 (NSW)) of triviality no work to do, that the Jameel principle is based upon human rights legislation not in force in Australia, and that case management legislation is not a proper basis for proportionality, find support in many of the decisions identified above where attempts to rely upon proportionality have been rejected. 7. Acceptance of the principles of proportionality may require acknowledgement by the court of an unduly restrictive approach taken to the defence of triviality. A good example of the failure of the defence occurred in Cush v Dillon; Boland v Dillon [2010] NSWCA 165; Cush v Dillon; Boland v Dillon (2011) 243 CLR 298. The publication was a slander to one person where the publisher and publishee were both tasked with an inquiry into whether an unsatisfactory employee should be sacked, and the publication was made in the course of carrying out that investigation. The appeals dealt solely with the defence of qualified privilege and not the s 33 triviality defence, which had also failed. This lack of appellate interest in s 33 can also be seen in the appeals in Skalkos v Assaf [2002] NSWCA 14; Skalkos v Assaf [2002] HCATrans 649 (letter to one person, thrown into the rubbish bin), King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 (publication on staff notice board); Enders v Erbas Pty Ltd [2014] NSWCA 40 (inter-office memo attaching staff leave roster); Jones v Sutton (2004) 51 NSWLR 614; [2005] NSWCA 205 (two slanders to a total of five friends of the plaintiff, in the course of local government politics). As Basten JA noted in Bristow v Adams at [41], the interaction between the s 33 defence and proportionality may be an obstacle to the development of proportionality principles. 8. I also note that rejection of these principles may be found in a number of first instance decisions of superior courts of record in New South Wales, such as Manefield v Child Care NSW [2010] NSWSC 1420 at [185] - [187] and Barach v University of New South Wales [2011] NSWSC 431. 1. This list is not intended to be exhaustive, but to be an illustration of some of the difficulties that lie in Mr Lewis' path in his submission that proportionality issues already form an accepted part of the law in Australia as stare decisis. 2. That is not to say that, in rare cases (to use Macfarlan JA's term in Ghosh at [41]), such an order cannot still be made. Bleyer v Google Inc is such a case, but this was not merely because only three persons read the matter complained of, but for a series of compelling reasons, including enforcement issues in the foreign jurisdiction where the assets lay. 3. However, the defendant's application is weakest in relation to the facts of this case. This was not a publication which was only read by a handful of persons in circumstances where there was doubt as to actionability in the jurisdiction, as was the case in Bleyer v Google Inc. Although archived, this was just the sort of publication which was likely to be consulted by persons wanting to search for more information about the sensational events shown in the Channel 7 video. The Channel 7 video was not searched for; in fact, it was "pushed" onto multiple Facebook accounts of persons whose analytics demonstrated they might be interested in such material, and those accounts included Ms Soueid's. 4. The first matter complained of used this video as a hook to get its readers in, with stories of material withheld from the jury to tempt the reader to find out more. According to the plaintiffs' evidence, all this clickbait was what led the plaintiffs' families and friends to make inquiries for material they quite possibly would not otherwise have been alerted to. 5. However, the categories of persons stimulated by the video and the first matter complained of to search for more material would not be restricted to the plaintiffs' relatives and friends; this article may, for example, have been read by journalists in other news media, or by persons with an interest in the trial. That the publication did not come to the attention of the plaintiffs (who were severely injured) or their families at the time of original publication in 2013 is irrelevant to proportionality issues. 6. Nor is publication of this archived material limited by the need to know extrinsic facts beyond the plaintiffs' names and asserted association with Brothers 4 Life; both the plaintiffs are named and described as gang members in the clearest of terms. The identification difficulties Mr Budu faced in his defamation action are not present here. 7. Whatever role proportionality may have to play in defamation law in the future, it is hard to imagine a less appropriate case than the present for the application of its principles. Conclusions concerning the application regarding the second matter complained of 1. The role of the Jameel principle in summary applications of this nature has most recently been considered by Kenneth Martin J in Desfosses v Martinson [2018] WASC 114. In a case with even stronger facts favouring the defendant (a private email to three persons who were relatives, one of whom resided in the United States), his Honour explained his reasons for refusing summary dismissal as follows: "[35] … The seminal decision in the consideration of abuse of process in the context of defamatory publications is Jameel v Dow Jones & Co Inc [2005] QB 946 (Jameel) in which it was held that as only five people who had known the plaintiff had seen the publication (three of whom were friends and associates of the plaintiff), the reputation of the plaintiff had not been affected to such an extent as to be worth judicial consideration. [36] It is more than a mere numbers game. In Mardas v New York Times Company; Mardas v International Herald Tribune SAS [2008] EWHC 3135 (QB) Eady J remarked: [W]hat matters is whether there has been a real and substantial tort within the jurisdiction (or at this stage arguably so). This cannot depend upon a numbers game, with the court fixing an arbitrary minimum according to the facts of the case [15]. [37] As well as the number, the nature of publishees is important. The relationship between the plaintiff and the persons to whom the material complained of has been published may be sufficient to give rise to the inference that the publishees were unlikely to have thought the worse of the plaintiff on account of the material complained of. For example, in Noorani v Calver [2009] EWHC 561 (QB) a defamation action in respect of comments made to the wife and daughter of the claimant that he was an Islamist terrorist was struck out. Coulson J held following Jameel and the subsequent line of authorities, the case did not serve the legitimate purpose of protecting the claimant's reputation; the words allegedly spoken were spoken briefly in a street; they were published to just two people who were persons wholly within the claimant's 'camp' and there was no evidence of any damage to the claimant's reputation. [38] In this case the Letter was published to three persons. Although the publishees are related to the plaintiff and the defendant, it is not possible to establish at this stage what the publishees knew of the matter in the Letter and whether the Letter is likely to have lowered the plaintiff in their estimation. The case should not be dismissed as an abuse of process, at least at this stage of the proceedings." [Emphasis added; footnotes omitted] 1. The matter complained of in those proceedings was a private letter to members of a family, not a sensational account of attempted or successful murders carried out by a notorious gang which were widely publicised online and in social media. The point about the extent of publication issue which is made by Kenneth Martin J, namely that "this is not a numbers game", demonstrates that caution must be exercised in relation to striking out proceedings with a very limited publication, even where these are relatives of the person defamed. 2. The same is the case here. Although the publication was archived, it enjoyed a second life online following the publicity of the trial in which the persons responsible for shooting the plaintiff were convicted. The nature of online googling, the sensational character of the allegations and the wide extent of later reporting of the trial result (as to which see McDonald v Dods, supra) put this publication well outside the parameters of the kind of limited publication seen in Bleyer v Google Inc. 3. The defendant's application for summary dismissal of the claim based on the second matter complained of is dismissed. The application for summary dismissal of the first matter complained of 1. Summary dismissal of proceedings for lack of defamatory meaning is rarely considered and even more rarely granted. The decision most commonly cited is Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679, where Herron CJ noted that, even at trial, the relevant test is the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. This extreme caution is necessary because, as Herron CJ noted, a tribunal of fact, whether summarily or at trial, should avoid "driving the plaintiff from the judgment seat". 2. One or even most of the imputations may be struck out at trial (as occurred in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652), but a submission that no defamatory imputation is capable of arising from the publication at all is a very different matter. 3. As is set out below, I am satisfied that four of the six imputations are reasonably capable of being conveyed. Imputations 3(c) and 3(f) have been struck out for reasons of form, with liberty to replead. In the course of making those rulings, I have set out the structure and relevant portions of the matter complained of, and I took those factors into account in relation to the summary dismissal application as well. 4. I note that I refused a summary dismissal application of the same kind in Khalil v Fairfax Media Publications Pty Ltd [2017] NSWDC 346. One of the reasons I did so arose from the inclusion of Channel 7 video material the contents of which identified the plaintiffs by name in circumstances where I was satisfied that the plaintiffs were identified as gang members because of the manner in which their names were presented. The same problem applies here. 5. Mr Lewis submitted that the first matter complained of was otherwise far more anodyne, in that the plaintiffs are only identified as "friends" and that the publication makes it clear they were simply in the wrong place at the wrong time. Even if that were the case, the question of whether the antidote outweighs the bane is a jury question. As is set out in more detail below, I do not accept that this is an accurate description of the first matter complained of in any event. If anything, the contents of this publication are even stronger than the publication in Khalil v Fairfax Media Publications Pty Ltd. 6. The defendant's application for summary dismissal on the basis that no defamatory imputations are reasonably capable of being conveyed is dismissed. The relevant test for the form and capacity of imputations 1. The capacity of imputations may be determined by a separate trial conformably with the procedure set out in Hibbert v Nationwide News Pty Ltd [2015] NSWCA 13. In the present case there are two publications, each of which must be considered separately. 2. The test for capacity is one of "generosity not parsimony" (Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136]; Wagner v Nine Network Australia Pty Ltd [2017] QCA 261 at [15]). 3. The principles relating to objections as to the form of imputations have helpfully been distilled by Beach J in Gant v The Age Co Ltd [2011] VSC 169 at [40]: "[40] Many authorities have dealt with the rules relating to the pleading of imputations. Whilst whether an imputation has been properly pleaded is to be determined as a matter of practical justice, the following propositions emerge from the authorities: (a) First, distinct meanings should be pleaded — and the test for distinctiveness is whether the evidence required to justify each meaning would be substantially different. (b) Secondly, distinct meanings should be distinctly pleaded — because of the potential for a rolled up plea to cause confusion. (c) Thirdly, an imputation must express the precise act or condition asserted of or attributed to the plaintiff or of which the plaintiff is charged. (d) Fourthly, an imputation should represent the final distillation of the alleged defamatory meaning." The imputations pleaded in the first matter complained of 1. The imputations pleaded for the first matter complained of are: 1. Imputation 3(a)/(d): The first/second plaintiff was shot in a car because of criminal association with criminal gang members. 2. Imputation 3(b)/(e): The first/second plaintiff was a member of a criminal gang OR the first/second plaintiff was a criminal associate of a criminal gang. 3. Imputation 3(c)/(f): The first/second plaintiff was so involved in vicious gang rivalry that he was shot as he sat outside the Chokolatta Café. 1. The relevant portions of the matter complained of are: 1. The heading "Brothers 4 Life: The inside story of a vicious rivalry within the gang that would hold Sydney to ransom". This headline is crucial to the imputations because it encapsulates the story, namely the vicious rivalry lying behind the series of murders and attempted murders of other gang members. 2. The Channel 7 video, which the parties agree forms part of the matter complained of although only appearing online. The plaintiffs are named in this video and, as noted above, I have already held that this video is capable of giving rise to imputations of the kind pleaded here concerning the plaintiffs' gang membership. 3. The two protagonists, Brothers 4 Life leader Qaumi and Mohammed "Little Crazy" Hamzy, are described and their photographs set out. The violence which would ensure when these two "go to war" (paragraph 12), is then described in graphic detail now that the suppression orders had been lifted after the guilty verdicts were entered (paragraph 13). 4. The principal acts of violence were a series of rival gang shootings after Qaumi discovered he was a marked man and targeted Hamzy, who escaped although those with him were killed or injured. "With war declared and reprisals expected, Qaumi made a list of further targets" (at 36). Two of these were members of the "Bankstown B4L" (at 37) but they escaped injury although a 14-year-old girl was hit by 300 pellets and seriously injured. 5. "Days later, a decision was made to kill a worker at Bankstown's Chokolatta Café on the basis he knew people who might be able to reveal Qaumi's secret Central Coast address. The man, Abdul Abu-Mahmoud, plus two friends, Khalil Khalil and Hassan Soueid, narrowly escaped being shot as they sat in a car outside the restaurant" (at 38). These "two friends" in the car with him are the plaintiffs; Mr Rasmussen submits that they must be the "people" who are meeting Mr Abu-Mahmoud for this purpose. 6. The next paragraph refers to "a final shooting" at the home of Hamzy's mother. This is followed by the statement that guilty verdicts were handed down against the Qaumi brothers but not against a Mr Kalal, who "admitted involvement in the Zakaria and Chokolatta shootings, but said he acted out of duress, fearing the Qaumi brothers" (at 41). 7. The rest of the matter complained of is a timeline. The entry for the Chokolatta shootings says: "Rumours circulate that a man aligned to Bankstown B4L working at the Chokolatta café may be obtaining Farhad's secret address. This man is shot in his car along with two friends. All three survive" (at 54). 1. Mr Lewis's submissions for all these imputations are that no inference can be drawn that even Mr Mahmoud is a member of, let alone aligned to, the Brothers 4 Life or any other gang. Even if this were possible, this is "of no moment in these proceedings" as the matter complained of "clearly distinguishes between Mr Mahmoud and the Plaintiffs" and to conclude that the plaintiffs have a criminal association or are members of a criminal gang "can only be the result of a tortured process of reasoning" (written submissions, at [2.19]). 2. Mr Lewis concedes that Mr Mahmoud is the "worker" at the Chokolatta Café who was targeted because he knew people who might be able to reveal Qaumi's home address, but submits that the plaintiffs are only identified as "two friends" and that this is insufficient. 3. However, the picture painted is of a Chokolatta café worker who is not working, but instead sitting in a car outside the café with the plaintiffs when they are all attacked. To the ordinary reasonable reader reading between the lines, it is open to infer, in this innuendo-laden article, that the plaintiffs were not mere friends dropping in for a coffee, but persons whom the café worker had left the café to see, as they were sitting in Mr Mahmoud's car outside the café at the time of the shooting. Independently of the Channel 7 video subtitled "Brothers for Life Court Brawl" (which I have separately held conveys a similar imputation), the written portions of the matter complained of are reasonably capable of conveying each of the first two imputations pleaded for each plaintiff. 4. Applying the test set out in Corby, imputations of being a gang member or an associate and of being shot because of it are reasonably capable of being conveyed. Imputations 3(a), 3(d), 3(b) and 3(e) will go to the jury. 5. Challenges are also made to the form of the imputations in that they are ambiguous and imprecise, in that terms like "criminal" are broad. Mr Lewis submitted (written submissions, paragraph 2.25) that it was hard to see how association with criminals was itself "criminal" (as to this submission, see Tajjour v New South Wales (2014) 313 ALR 221). 6. These challenges are of little substance in an article as generalised and sensational as the present, where the imputations simply "join the dots" to express the implications arising from the circumstances of the plaintiffs' rendezvous with Mr Mahmoud in his car outside the café where he worked. 7. However, there is substance in the defendant's complaint concerning imputations 3(c)/(f), where the use of "involved" (itself a weasel word) is worsened by the use of the word "so". In addition, the meaning appears perilously close to imputations 3(a)/(d). 8. The word "involved" has consistently been struck out as a weasel word in New South Wales and Western Australia. It was struck out in Pickering v Publishing & Broadcasting Pty Ltd (Supreme Court of NSW, Levine J, 21 June 1996), which was cited with approval and followed by Barker J in Lim v TVW Enterprises Pty Ltd [2002] WASC 214. Leave to appeal was refused when Nicholas J struck out "involved" in Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 at [29]; Hayson v John Fairfax Publications Pty Ltd has been relied upon as recently as earlier this year, in Accommodation West Pty Ltd v Aikman [2017] WASC 157. In Accommodation West Pty Ltd v Aikman, a series of imputations using the word "involved" were struck out by Kenneth Martin J, who upheld the challenges made by the defendant to the use of both "improperly profiting" (citing Hepburn v TCN Channel Nine [1984] 1 NSWLR 386 per Hunt J at 403) and "involved". 9. All of those decisions refer to "involved" as a "weasel word". I am aware of the practice in the Federal Court of Australia of eschewing such principles, or of restricting such principles to contextual imputations, which are considered (for reasons unclear to me) to require more specific pleading (Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 at [20]). However, these are recent decisions from one judge and I consider I am bound by appellate authority to the contrary (Ma Ching Kwan v John Fairfax Publications Pty Ltd [1998] NSWSC 321; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 163). 10. I have accordingly struck out imputations 3(c) and 3(f) for defects of form, with liberty to replead. The imputations pleaded in the second matter complained of 1. The imputations pleaded for the second matter complained of are: 1. Imputation 5(a)/(d): the first/second plaintiff is a member of a criminal gang, the Brothers for Life. 2. Imputation 5(b)/(e): the first/second plaintiff was shot by a rival gang member outside the Chokolatta café at West Terrace Bankstown. 3. Imputation 5(c)/(e): the first/second plaintiff is a criminal. 1. The second matter complained of is clearly capable, on the Corby test, of conveying that the plaintiffs are each gang members and were shot by a rival gang member. The matter complained of says so in paragraph 19. These imputations will go to the jury. 2. The submission that there is nothing in the matter complained of to connote criminality is wholly at variance with the gross criminality of all the persons involved. The magistrate is shown struggling to reconcile the need of one of the accused for bail for treatment of his serious injuries with the fact that his "extremely lawless life" meant that there were concerns for the protection of the community and prosecution witnesses. All of the persons in the gang, whether injured in these murderous encounters or not, are painted as dangerous members of a criminal gang and thus as criminals. 3. The challenges to form (on the basis of asserted absence of precision) are without merit. The level of precision required to plead imputations need be no greater than that of the matter complained of: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137. Orders and costs 1. The defendant has brought an application for indemnity costs on the basis of asserted unreadiness by the plaintiff for earlier hearings of this application. 2. The plaintiff has been almost entirely successful in this application. Whether any adjustment to the costs order should be made to allow for asserted earlier unreadiness should be the subject of submissions. 3. I have accordingly reserved the question of costs. Orders 1. Defendant's application for summary dismissal of the proceedings dismissed. 2. Pursuant to UCPR r 28.2, imputations 3(a), 3(d), 3(b) and 3(e) are reasonably capable of being conveyed. 3. Pursuant to UCPR r 14.28, imputations 3(c) and 3(f) are struck out with leave to replead. 4. Pursuant to UCPR r 28.2, imputations 5(a), 5(b), 5(c), 5(d), 5(e) and 5(f) are reasonably capable of being conveyed. 5. Costs reserved with liberty to apply. ********** 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: 21 May 2018