Bilal v Nine Network Australia Pty Ltd
[2017] ACTSC 388
•18 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Bilal v Nine Network Australia Pty Ltd |
Citation: | [2017] ACTSC 388 |
Hearing Date: | 11 December 2017 |
DecisionDate: | 18 December 2017 |
Before: | Mossop J |
Decision: | See [33] |
Catchwords: | TORTS – DEFAMATION – Application to strike out imputations – whether imputations capable of arising – sensational television broadcast – particulars of claim for loss to businesses – need for proper particulars in or accompanying statement of claim |
Legislation Cited: | Court Procedures Act 2004 (ACT), s 5A(4) Court Procedures Rules 2006 (ACT), rr 425, 430, 433(1), 433(2)-(3), 433, 1304, 1305 Uniform Civil Procedures Rules 2005 (NSW), r 14.30(3) |
Cases Cited: | Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; 43 NSWLR 158 Chiguvare v Seven Network (Operations) Ltd [2015] ACTSC 285 |
Parties: | Ali Bilal (Plaintiff) Nine Network Australia Pty Limited (First Defendant) Steven Marshall (Second Defendant) |
Representation: | Counsel S Littlemore QC (Plaintiff) M Richardson (First and Second Defendant) |
| Solicitors Ben Aulich & Associates (Plaintiff) Mark O’Brien Legal (First and Second Defendant) | |
File Numbers: | SC 345 of 2017 |
MOSSOP J:
Introduction
The plaintiff has alleged in these proceedings that he was defamed by a segment on a television program called “A Current Affair” which was broadcast on 4 July 2017. That claim is outlined in his Statement of Claim filed 8 September 2017.
By application in proceedings filed on 10 October 2017 the defendants have sought to strike out, pursuant to r 425 of the Court Procedures Rules 2006 (ACT) certain paragraphs of the Statement of Claim on the basis that they disclose no cause of action or that they may tend to prejudice, embarrass or delay the fair trial of the proceedings. As a result of an indication from the solicitors for the plaintiff that certain aspects of the Statement of Claim are to be amended, the area of contention arising from the application in proceedings has been narrowed.
The general principles applicable to challenges to imputations are summarised in Chiguvare v Seven Network (Operations) Ltd [2015] ACTSC 285 (‘Chiguvare’) at [5]–[9]:
5.If reasonable minds may differ as to whether an imputation is capable of being conveyed, then that imputation must be left to the tribunal of fact: see [Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36] at [72]. The High Court’s decision in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 (‘Favell’) illustrates that it may be difficult to successfully contend that a finder of fact could not reasonably conclude that the challenged imputation arose.
6.Imputations must be clear in their terms and imprecise imputations will be struck out: see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 140 (‘Drummoyne’). I would however note that what is required in any given case involves a judgment being made as to the degree of particularity or generality which is appropriate to the occasion. In Drummoyne Gleeson CJ articulated the nature of the problem and the fact that the specificity of the pleading is very much dependent upon the circumstances of the case. His Honour said (at 137B): “If a problem arises, the solution will usually be found in considerations of practical justice rather than philology.”
7.Similarly if an imputation is likely to cause confusion at trial it ought to be struck out, even if it has used the words used in the publication: Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155. The issue which has to be decided in any particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.
8.A plaintiff is required to specify the act or condition which he or she contends was understood by the ordinary reasonable reader as being attributed to him or her by the matter complained: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [129] (‘Harvey’). Unless the terms of the matter complained of are so brief or so opaque that they do not permit the distillation of an act or condition, it is not sufficient to simply plead the words of the matter complained of: Harvey at [118]-[129]. This Court has accepted the need for precision in imputations in the same manner as is required in NSW: Baffsky v John Fairfax & Sons Ltd (1991) 106 FLR 21 at 32. However, I should emphasise that the requirement for precision and the avoidance of confusion are manifestations of the ordinary rules of pleading in the particular context of a defamation action. They respond to the requirements for practical justice as between the parties.
9.The defendant points to r 14.30(3) of the Uniform Civil Procedure Rules 2005 (NSW) which imposes a requirement that imputations must differ in substance. There is no comparable provision in the ACT. The purpose of the rule is to preclude the duplicated pleading of substantially similar imputations arising from the same publication. The defendant submits that the same principle ought to apply in the ACT, and that, at least in circumstances where the parties are already arguing capacity and form pre-trial, the Court should also deal with a difference in substance argument at the same time. This Court has accepted that imputations ought to differ in substance in a number of cases: Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 259; Rendell v Federal Capital Press of Australia Pty Ltd [2003] ACTSC 100 at [28]; Russell v Win Corporation Pty Ltd [2013] ACTSC 159 at [7]. An alternative course adopted in this Court has been to defer difference in substance arguments until trial: Roe v Nationwide News Pty Ltd [2011] ACTSC 156 at [24]. The extent to which such a principle should be imported to pleading in the Territory, where there is no equivalent rule, is a matter which, having regard to the conclusions that I have reached, is not necessary to consider in any detail in this case. I suspect that in any particular case it involves an exercise of judgment but one which needs to be made with a view to avoiding excessive refinement or encouraging non-essential interlocutory applications.
As in Chiguvare, it is not necessary to reach any conclusion as to whether there is, in the Territory, a principle equivalent to r 14.30(3) of the Uniform Civil Procedures Rules 2005 (NSW).
In the application of these principles it is important to understand that the exercise is not to be undertaken by a scrupulous academic parsing of the language and the application of strict logic to the potential for imputations to arise from that language. As was made clear in Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; 43 NSWLR 158 (‘Marsden’), there is a distinction between the imputations which it could be concluded a publication was capable of giving rise to if such a strictly-logical approach was adopted and the diversity of imputations that are capable of arising in the real world. In Marsden Hunt CJ at CL’s reasons at p 165 ff demonstrate that the following principles are applicable:
(a)The ordinary reasonable meaning of a matter complained of may either be the literal meaning of the published matter, what is implied from that matter or what is inferred from it.
(b)The issue is whether the matter complained of is reasonably capable of arising. Any strained, forced or utterly unreasonable interpretation must be rejected.
(c)The ordinary reasonable reader, listener or viewer (as the case may be) is a person of fair average intelligence who is neither perverse nor morbid nor suspicious of mind nor avid for scandal.
(d)The person does not live in an ivory tower but can and does read between the lines in the light of the person’s general knowledge and experience of worldly affairs.
(e)The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. For example, a book is likely to be read with more care than a newspaper. The more sensational an article in a newspaper the less likely that an ordinary reasonable reader will read it with the degree of analytical care which may be given to a book.
(f)The ordinary reasonable reader of a sensational article is “understandably prone to engage in a certain amount of loose thinking”.
(g)There is a wide degree of latitude given to the capacity of the matter complained of to convey particular implications where the words published are “imprecise, ambiguous, loose, fanciful or unusual”.
(h)These considerations apply to a greater degree where the matter is published in a transient form, particularly in the electronic media. That is because there is no capacity to reread or consider the whole document at leisure and hence change the first impression of what message was being conveyed.
(i)Although a listener or viewer must be assumed to have heard or seen the whole of the relevant program, he or she may not have devoted the same degree of attention to each part of the program as would otherwise have been given to a written article and, as a consequence, may have missed the significance of the existence earlier in the program of a qualification of a statement made later in the material.
(j)The trial judge in a transient-publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances was in fact conveyed than he or she would in a written-document case.
(k)A distinction must be drawn between what the ordinary reasonable reader, listener or viewer drawing on his or her own knowledge and experience of human affairs could understand from what the defendant has said and the conclusion which the reader, listener or viewer could reach by taking into account his or her own belief which has been excited by what was said. A publisher will be held responsible for the former but not the latter.
(As a result of technological changes and the shift towards delivery of broadcast over the internet, the situation today might differ somewhat from the situation that applied in 1998 in that many broadcasts will now no longer be strictly ephemeral. In cases where what would previously have been a television broadcast is viewed over an internet streaming service it may, at least in theory, be possible for an attentive viewer to replay the broadcast and in that sense it is not strictly ephemeral. However, in my view, the point made in Marsden remains true, namely, that television and similar broadcasts are less likely to be replayed and analysed so as to acquire a more refined or qualified understanding of the content of the publication.)
Following the exchange of written submissions the defendants’ challenge was limited to the imputations in paragraphs 4(a), (b), (d) and (h) of the Statement of Claim (see [11]). The previous challenges to paragraphs 4(e), (f), (g) and (i) of the Statement of Claim were not pressed. There was also a challenge to the failure to particularise the claim for damages in paragraph 7(a) of the Statement of Claim which relates to a possible claim for damages for a general loss of business or custom to the plaintiff’s businesses.
I will address each of the challenged imputations separately. However before doing so it is necessary to say a little more about the subject matter of the publication.
The publication
The publication is a segment on a television program called “A Current Affair”. It runs for approximately 12 minutes. It was published by television broadcast as well as being published or republished on a number of internet sites. The Statement of Claim identifies that the publication comprises 36 sequences which are described in the Statement of Claim by reference to both the images shown and the words used. The imputations are particularised by reference to those sequences. The parties made their submissions by reference to particular sequences.
The publication is focused on the actions of a father, Steven Pattman. His daughter entered a relationship with the plaintiff who is described as “a notorious bikie boss”. The program describes how Mr Pattman and his son joined the same motorcycle gang as the one associated with the plaintiff in order to “rescue his girl from a life he didn’t approve of”. It also describes how there came a point where he and his son wished to leave the gang. It describes that he was being “constantly harassed by gang members” and there was a violent confrontation in which he discharged a modified .44 Magnum revolver close to the head of another man and that this has led him to be charged with various offences and potentially facing a prison sentence.
The pleaded imputations
For the purposes of the present application the following imputations pleaded in the Statement of Claim or proposed to be pleaded are relevant:
(a)Imputation 4(a): That the plaintiff represented such a danger to the life of Chloe Pattman, a girl of 19, that her father was driven to commit serious crimes in a bid to protect her from him.
(b)Imputation 4(b): That the plaintiff represented such a danger to the life of Chloe Pattman, a girl of 19, that her father was driven to commit serious crimes in a bid to rescue her from him.
(c)Imputation 4(d): That the plaintiff so conducted himself as to drive the father of Chloe Pattman to criminal acts of desperation in fear for her safety.
(d)Imputation 4(h) (as proposed to be amended): That the plaintiff is to blame for members of his motorcycle gang harassing Steven Pattman, who was trying to rescue or protect his daughter, a girl of 19, from him.
Defendants’ first argument
The defendants submitted that the form of imputations 4(a) and 4(b) was defective because of the reference to “serious crimes”. The defendants submitted that each alleged crime should be separately pleaded so that the defendants could, for example, seek to justify each imputation separately. While I accept that it would have been open to the plaintiff to separately plead each crime in a separate imputation I do not consider that the wrapping up of the references to crimes within a single formulation, even though the crimes referred to in the publication occurred in different circumstances and at different times, warrants the striking out of the imputation. Having regard to the fact that trial will be by judge alone I do not consider that this will be a source of confusion at the trial. It remains open to the defendant to justify the imputation by reference to crimes which it identifies and it may still succeed in justifying the imputation even though it may not be able to justify that Mr Pattman acted with the relevant motives in relation to all crimes referred to in the publication.
Defendants’ second argument
The defendants contended that imputations 4(a), (b) and (h) were incapable of arising. That was because they submitted that the “serious crimes” or “criminal acts” were references to the conduct alleged to be committed at the sequences 18–22 and 28, namely, the discharge of a firearm in close proximity to a member of the motorcycle gang during a confrontation outside Mr Pattman’s house on a suburban Canberra street. The defendants submitted that the imputation was incapable of arising because that material related to a shooting that occurred after Mr Pattman had left the motorcycle gang in question. As a consequence the defendants submitted that the shooting was in response to constant harassment by gang members and had no connection whatsoever to Mr Pattman’s desire to protect his daughter from the plaintiff. The defendants submitted that having left the motorcycle gang, Mr Pattman had, in effect, left his daughter to her relationship with the plaintiff and had given up his attempts to rescue or protect her. Instead, he was only attempting to protect himself.
The plaintiff had essentially two answers to this submission. First he said that that the crimes identified in the program as having been committed in the publication included joining a gang and illegally buying a firearm, in addition to the discharge of the firearm in response to harassment. Therefore the temporal submission made by the defendants in relation to the capacity of the imputation to arise should not be accepted. Second, the plaintiff submitted that even if the imputation alleged necessarily incorporated the shooting incident then, having regard to the sensational and transient nature of the publication and the characteristics of the reasonable viewer of the program, it could not be said that the imputation was incapable of arising.
In response to the plaintiff’s submission that the criminal acts extended beyond the shooting incident, the defendants submitted that the purchase of the firearm was not capable of amounting to a “serious” crime. They also submitted that the imputations as pleaded were likely to cause confusion at the trial because they conflated qualitatively different criminal acts that occurred at materially different times.
While I accept that upon a careful analysis of what is said in the publication the defendants’ point may be a sound one, that is not the test to be applied when addressing questions of capacity in a sensational and transient publication. The difficulty for the defendants’ contention is the impressionistic nature of the publication as a whole and the lack of a coherent chronology within it. The first part of the program contains a series of sequences without any coherent chronology. They are designed to provide a sensational opening section. In the later sequences (sequence 11 and following) there is then a more chronological development of the story. There is no coherent explanation within the publication as to how Mr Pattman and his son’s membership of the motorcycle gang was intended to permit him to protect his daughter or rescue his daughter from the plaintiff. Further, there is no coherent explanation as to why, following his departure from the gang, he was being constantly harassed by members of the gang. It is therefore not possible to say that, at the level of the capacity of the imputation to arise, the shooting incident in the imputation had no connection with the plaintiff’s bid to protect his daughter from the plaintiff. Instead of providing a coherent description of what Mr Pattman and his son hoped to achieve through membership of the gang, the circumstances of his departure from the gang or the reasons for harassment by gang members, the publication, in an impressionistic way, links Mr Pattman’s criminal activity to his efforts to protect his daughter. As a consequence it is not possible to say that the imputation is incapable of arising.
The other two potential criminal acts are the joining of a gang and the purchase of a firearm. Both parties proceeded on the basis that the joining of an outlaw motorcycle gang was capable of supporting an imputation of the commission of a crime or a criminal act even though no particular offence provision was identified. I do not accept the defendant’s submission that, at the level of capacity, the joining of the gang could not be considered to be a “serious” crime. Similarly, in relation to the purchase of an illegal handgun, I do not accept the submission that this was incapable of amounting to a “serious” crime. The evidence on this application did not extend to identification of any charge actually faced by Mr Pattman but the offence provision in the Firearms Act relating to the unlawful acquisition of firearms carries a penalty of up to five years’ imprisonment: Firearms Act 1996 (ACT) s 227. In my view the allegation of the purchase of an illegal handgun is capable of giving rise to an imputation that a “serious” crime had been committed.
I therefore do not accept that the defendants’ second argument should lead to the striking out of any part of the Statement of Claim.
Defendants’ third argument
The defendants submitted that the imputations in 4(a) and 4(b) did not differ in substance. That was because it submitted that there was “no real or practical difference between the objectives of protection and rescue”.
The plaintiff submitted that the publication used each of the words “protect” or “rescue” at different points for the different meanings.
In relation to the difference‑in‑substance point, as in Chiguvare, I do not need to decide whether this is a matter which can be raised under r 425. That is because I consider that there is a distinction between “protection” and “rescue”. “Rescue” suggests protection by removal from the threat or captivity. Protection however may be achieved without removal. While rescue is one means by which Mr Pattman may have protected his daughter from the plaintiff, protection is a significantly broader concept. Protection may be achieved in ways other than rescue. Given the lack of coherent explanation within the publication as to precisely what was intended or attempted to be achieved by joining the motorcycle gang, it cannot be said that the publication was only consistent with a meaning limited to the meaning of one or the other expressions. There is, therefore, a difference in substance even if the object of protection and rescue may be the same. I therefore do not consider that this argument warrants striking out any part of the pleading.
The defendants’ fourth argument
The defendants submitted that imputation 4(h) as it was proposed to be amended was defective because any harassment of Mr Pattman occurred only after he was trying to rescue or protect his daughter. This is similar to the temporal point dealt with above. For essentially the same reasons as given earlier, I do not accept the defendants’ submissions. In circumstances where there is no explicit explanation in the publication of the reasons for the harassment I consider that the imputation is capable of arising.
Defendants’ fifth argument
Paragraph 7 of the Statement of Claim provides, relevantly:
7.The Plaintiff claims aggravated damages and general damages, together with interest thereon.
Particulars of damages:
(a) The Plaintiff makes no claim for special damages; but reserves his rights to claim damages by way of a general loss of business or custom by his businesses.
…
The solicitors for the defendants wrote on 22 September 2017 asking the plaintiff to “particularise the precise nature of the alleged losses and identify the businesses”, to specify the facts, matters and circumstances relied upon by the plaintiff and provide copies of all documents to be relied upon in support of the claim. The solicitors for the plaintiff gave the unhelpful response: “The particulars you seek will be furnished in due course when fully determined, and are not required for the preparation of your clients’ Defences.”
The obligation upon the plaintiff was to include in the pleading the particulars necessary to define the issues for, and prevent surprise at, the trial and enable the opposite party to identify the case that the pleading required the opposite party to meet: r 430 of the Court Procedures Rules. If it is inconvenient to provide the particulars in the pleading then those particulars must be given in a separate document mentioned in, and filed and served with, the pleading: r 433(1). While further particulars may be given by correspondence, the party doing so must file a copy of the particulars: r 433(2)–(3).
It is often the case that at the point of commencement of the proceedings it is difficult or impossible to specify with precision all of the required information to meet the purposes of r 430. However that does not permit a party to ignore the intent of the rule. If a party wishes to make a claim then it must do its best to particularise that claim and hence to meet the substantial purpose of the requirements in r 430. A party is not entitled to either fail to consider the case that it actually wishes to run at the point of commencement of proceedings or, alternatively, to consider and determine the case that it wishes to run but deliberately withhold that information from the other party.
Courts do not ignore the reality of the difficulty of precision in relation to some aspects of particularisation at an early stage of the proceedings. They will do that by permitting refinement of particulars during the course of proceedings. In personal injury and compensation-to-relatives cases that is recognised by the process for the filing of a statement of particulars before trial: rr 1304, 1305. In other cases the refinement may require an amendment to the pleadings or the filing of documents refining particulars which have, at an earlier stage, been provided in general terms. Courts are more sympathetic to a party who wishes to refine or alter previously provided particulars if it is clear that a genuine attempt has been made to consider and disclose particulars in a manner consistent with r 430 and to conduct the case in a manner that is consistent with the duties of parties under s 5A(4) of the Court Procedures Act 2004 (ACT). Obviously the reverse applies where a party through idleness, disorganisation or recalcitrance has failed to conduct itself in accordance with its obligations.
In the present case the plaintiff has not positively asserted any claim for general loss of business or custom. Rather he has purported to reserve his right to do so. Even if what is particularised is treated as being a positive assertion of particulars of damage, the manner in which it is done fails to comply with the obligation under r 430 and is inconsistent with the duties of a party under s 5A(4). The plaintiff did, shortly prior to the hearing of the application, articulate what his “businesses” might be. By letter sent to the defendants (but not filed) the plaintiff identified the plaintiff’s businesses as a liquor distributor in Fyshwick known as “The Thirsty Camel”, an unnamed café in Fyshwick and the “Lakeside Tattoo Parlour” in Belconnen. However he simply purported to “reserve his right” to make a claim for loss of business and did not identify whether he was in fact making such a claim. Thus it is impossible for the defendants to know the case that they are meant to meet or to identify the merits of the plaintiff’s claim.
The plaintiff submitted that he was in reality only reserving his position and that this form of pleading was common. He submitted that, having regard to the date of the publication, in the ordinary course accounts of the businesses would not have been prepared and hence it was not unreasonable to defer any necessary particularisation until that had occurred. There was no evidence to provide a factual foundation for this submission.
The defendants’ submission was that there should be a direction requiring the provision of particulars of any claim for loss of business within a reasonable time. I consider that this will be the most effective means of ensuring that the plaintiff either particularises or abandons any claim for loss of business alleged to have arisen by reason of the publication.
Conclusion
The defendants’ Application in Proceedings has, to the extent that matters were still in contest, only been successful in relation to the absence of particularisation of any claim for damages for loss of business.
Whatever the outcome of the application, the plaintiff invited the Court to make an order that there be no order as to the costs of the application or that costs be costs in the cause. At least one reason for this is that the bringing of the application had led to the plaintiff identifying in correspondence refinements which it proposed to make to its pleadings which in turn narrowed the issues required to be determined on the application. I propose to make an order consistent with the plaintiff’s invitation but requiring the plaintiff to pay the costs thrown away by reason of the amendment to his pleadings. I will give the parties a limited opportunity to be further heard if they wish.
Orders
The orders of the Court are:
1. The plaintiff is given leave to file an amended statement of claim making the amendments to the imputations that have been foreshadowed in correspondence between the parties.
2. The amended statement of claim must be filed by 20 January 2018.
3. The amended statement of claim must identify whether the plaintiff makes any claim for damages for loss of business and provide particulars in accordance with r 433(1).
4. The Application in Proceeding filed 10 October 2017 is otherwise dismissed.
5. The costs of the Application in Proceeding dated 10 October 2017 are costs in the cause.
6. The plaintiff is to pay the defendants’ costs thrown away by reason of the filing of the amended statement of claim.
7. Orders 5 and 6 do not take effect if, within seven days of the date of these orders, any party notifies my associate that it wishes to be further heard in relation to costs.
8. The proceedings are listed for directions before the Senior Deputy Registrar on Monday 29 January 2018 not before 11:30 am.
9. The parties are to confer and attempt to agree on directions that are required up to the point of a listing hearing and provide agreed or competing directions to the Senior Deputy Registrar by 4 pm on Thursday 25 January 2018.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 18 December 2017 |
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