El-Mouelhy v QSociety of Australia Inc

[2015] NSWSC 545

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	El-Mouelhy v QSociety of Australia Inc [2015] NSWSC 545
Hearing dates:	27 March 2015
Date of orders:	02 April 2015
Decision date:	02 April 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Imputations 16(a) and 16(e) struck out pursuant to r 14.28 of the UCPR with leave to re-plead. Imputation 16(c) and 16(h) struck out. Imputations 16(d), 25(c), 25(d) 25(g) ruled to be capable of being conveyed.
Catchwords:	DEFAMATION – procedure – rulings on imputations – whether imputations capable of being conveyed – whether imputations are imprecise so as to cause embarrassment – imprecision of- the term “un-Australian”
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited:	Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Category:	Procedural and other rulings
Parties:	Mohamed El-Mouelhy (Plaintiff) QSociety of Australia Inc (First Defendant) Kirralie Jane Smith (Second Defendant) Peter Dominic Callaghan (Third Defendant) Debbie Robinson Claim (Fourth Defendant) Ralf Schumann Claim (Fifth Defendant)
Representation:	Counsel: B Connell (Plaintiff) L Barnett (Defendant) Solicitors: O'Connor Legal (Plaintiff) Banki Haddock Fiora (Defendants)
File Number(s):	2014/377391
Publication restriction:	None

Judgment

1. HER HONOUR: These are proceedings for defamation commenced by Mr Mohamed El-Mouelhy against an entity called QSociety of Australia Inc and four individuals arising out of the publication of two videos posted on Facebook. Broadly speaking, the subject matter of the videos is the topic of halal certification. The plaintiff conducts the business of halal certification.

2. The proceedings came before the Court for the first listing hearing in accordance with the Practice Note (SC CL 4) last week. This judgment determines the objections taken by the defendants to the statement of claim at that hearing.

3. The first matter complained of is an information video presented by the second defendant and published by the first defendant. The overall structure of the video is to explain, first, what "halal" means according to the Muslim faith. The video then traces the development of the practice of providing halal certification globally and in Australia and what the presenter argues are the ramifications of the development of that practice.

4. The first imputation objected to is imputation 16(a):

“That the plaintiff in and about the conduct of the halal certification business which he conducted engaged in conduct that was corrupt.”

5. The defendants object to that imputation on the ground that it is bad in form in that it lacks the requisite specificity and is imprecise. They relied upon the well-known decision of the Court of Appeal in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.

6. That decision acknowledges that the degree of specificity with which an imputation can be pleaded will always turn on the clarity of the matter complained of itself. In the judgment of the Chief Justice, his Honour observed at 137B that “almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation”. The degree of particularity or generality appropriate in any given case is a matter of judgment.

7. In a case where further refinement of an attribution of corruption is possible, the defendant is generally entitled to have the imputation articulated with such specificity. Mr Connell, who appears for the plaintiff, argued that in the present case the allegation of corruption is not capable of greater specificity and that the generality of the imputation arises from the terms of the matter complained of. He submitted that the matter complained of contains a generalised charge of corruption in which the nature of the corruption is not subsequently identified in any coherent form, but is directed not merely at worldwide operations but also at the Australian halal certification industry of which Mr El-Mouelhy is portrayed as a representative and leader.

8. In my view, the imputation does have the difficulty identified in Drummoyne Municipal Council. Although it may be accepted that there are words in the matter complained of which convey a general, undifferentiated charge of corruption, there is also, within the material presented, a deal of further specification as to the precise way in which the halal certification business is said to be corrupt. The matter seems to me to convey the more specific charge that the business of halal certification is corrupt because it is wholly unnecessary, according to the Muslim faith, but is a service for which those engaged in the business effectively extort fees from businesses that face various identified difficulties if those fees are not paid and the certification given.

9. Accordingly, I am persuaded by the defendants' submissions that imputation 16(a) is embarrassing in the legal sense and does not enable the defendants to know precisely what would have to be proved in order to meet it. My ruling in respect of that imputation is that it be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

10. Imputation 16(c) is that the plaintiff is “un-Australian”. It may be acknowledged that that is the term used in the matter complained of. However, in my view, as submitted on behalf of the defendants, the term "un-Australian" is a colloquial or slang phrase with no settled meaning. I do not think its use should be permitted in the imputation. It fails to distil what is alleged to have been attributed to the plaintiff by the matter complained of. I think to allow that imputation to go to trial would result in embarrassment in the legal sense and, accordingly, the imputation is liable to be struck out.

11. The next objection is to imputation 16(d), which is:

“That the plaintiff was involved in a push for instituting repressive sharia law in Australia.”

12. The defendants submitted that nothing in the first matter complained of conveys the notion that sharia law is “repressive”. I do not accept that submission. In my view, the matter complained of is plainly capable of being understood as being in the nature of a scare campaign against halal certification as the first manifestation of the perceived threat of sharia law. I do not think it can be doubted that the overall tenor of the matter complained of is to contend that sharia law is repressive.

13. In particular, having regard to the passages relied upon by Mr Connell, I note that the matter complained of makes explicit reference to the Muslim Brotherhood. It also presents sharia law and halal certification as being contrary to “Australian values”. The presenter in particular states that sharia law provides “no freedom for the things we value”. There is constant emphasis on matters represented to be Australian values, such as freedom of speech, freedom of religion, equality and democracy. The overall message conveyed by the matter complained of is that there is a distinction between those allegedly Australian values and the values of the Muslim faith and sharia law.

14. The matter complained of in my view is plainly capable of conveying imputation 16(d). My ruling in respect of that imputation is that it will go to the jury.

15. The next objection is to imputation 16(e) which is:

“That the plaintiff was promoting a global push for Islamisation calculated to destroy Australian values of freedom and tolerance.”

16. The defendants did not, I think, take issue with the proposition that the matter complained of conveys the notion that there is in existence a global push for Islamisation calculated to destroy Australian values of freedom and tolerance. That, indeed, appears to me to be the central tenet of the video. It was submitted, however, that the matter complained of does not suggest that the plaintiff is “promoting” that push. Mr Connell drew attention to a number of features of the matter complained of in respect of that argument. In particular he noted that the plaintiff is named twice and is presented in effect as a representative or leading industry figure for the business of halal certification in Australia.

17. There is a reference in the matter complained of to the plaintiff’s allegedly having boasted of getting “very, very rich” from the business of halal certification and a comment repeated in both matters complained of about his wealth from that business enabling him to “buy shoes for his wife”. Mr Connell submitted that that was obviously a facetious comment and would not be taken at face value by the ordinary reasonable reader. He submitted that the matter complained of, in presenting Mr El-Mouelhy as the leader of halal certification in Australia, puts him in a role of promoting the global push for Islamisation, which is the subject of the matter complained of.

18. Whilst I accept that the plaintiff is presented as an identified participant in halal certification in Australia, in my view there is nothing in the matter complained of to suggest that he personally promoted the push for Islamisation. I do not have any doubt that the matter complained of is capable of conveying the meaning that he was a part of that push, but in my view there is nothing in the matter complained of to suggest active promotion of that cause by the plaintiff. That, in my view, would be a strained reading of the matter complained of. However, plainly the plaintiff should have leave to re-plead imputation 16(e). My ruling is that it is not capable of arising.

19. The next imputation objected to in respect of the first matter complained of is 16(h):

“That the plaintiff is reasonably suspected of providing financial support to terrorist organisations.”

20. An imputation in the same form is alleged to arise from the second matter complained of: imputation 25(g). In each case, the objection is that the imputations are not reasonably capable of being conveyed. The defendants accept that the matters complained of raise questions generally as to where the money from halal certification goes, discussing suspicions that money from halal certification schemes in other countries have been used to fund terrorism and posing the question, where is such money going in Australia?

21. In my view, there is force, however, in the defendants' further contention that, so far as the plaintiff is concerned, there is simply nothing to connect him with those suspicions.

22. There is a further difficulty with the imputation which is not a point taken by the defendants but which I raised in argument. The imputation asserts that the plaintiff is “reasonably suspected” of certain conduct, but does not identify the person who holds that suspicion. That is a difficulty with form which, in my view, poses a potential embarrassment to the defendants. The imputation in its present form would not readily be susceptible of a truth defence or, alternatively, may simply be proved by a single person going into the witness-box and saying that he or she suspected the plaintiff of such conduct, articulating the grounds for that suspicion. Either way, I think the imputation has a difficulty in form and should be struck out on that basis. I am not inclined, subject to any further submission that may be put on behalf of the plaintiff, to allow leave to re-plead in that instance in light of the conclusion I have reached on the issue of capacity, which was the objection taken by the defendants.

23. Finally, in respect of the second matter complained of, the defendants object to imputations 25(c) and 25(d) as follows:

“(c)    That the plaintiff was part of a conspiracy to destroy western civilisation from within.

(d)    That the plaintiff was part of a conspiracy to achieve world domination.”

24. During argument as to the imputations, both parties invited the Court to watch the matter complained of, which I have done. Having seen that material in visual form, as opposed to simply reading the transcript, I have to say that those imputations seem to me to be barely there. The matter complained of certainly pursues the agenda of the argument that halal certification is unnecessary and a vice to be resisted in Australian society. In my view, much of the argument presented in support of that proposition is likely to be perceived as hyperbole or as generating unnecessary concern or alarm within the Australian community.

25. Upon careful reflection, however, I do not think I should take those imputations from the jury. I am mindful of the authorities which urge caution in this context, particularly the decision of the High Court in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 and the recent decision of the Court of Appeal in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227.

26. The overall tenor, as I have said, of the matters complained of is to put forward information and arguments concerning the role of halal certification in Australian society and there can be no doubt that the plaintiff is presented as a person engaged in that business. On balance, I think I should leave it to a jury to determine whether the matter complained of conveys the imputation that there was a “conspiracy to destroy western civilisation from within” or a “conspiracy to achieve world domination” and that the plaintiff was in each case a part of that conspiracy.

27. The final objection was that, if imputations 25(c) and (d) are capable of being conveyed, they do not differ in substance from each other. I do not accept that submission. It seems to me that the notion of destroying western civilisation is, although perhaps a subset of the second proposition, not the whole proposition of achieving world domination. Accordingly, the ruling in respect of those imputations is that they will go to the jury and need not be pleaded as alternatives.

28. I direct the parties to bring in short minutes of order to reflect these reasons.

29. ADDENDUM: shortly after the publication of this judgment, Barrett JA upon the occasion of his retirement considered the term “un-Australian” (see imputation 16(c), struck out for the reasons stated above). A retirement speech does not of course stand as precedent, but his Honour remarks more eloquently capture the imprecision of that term. His Honour said:

I dislike intensely the expression “un-Australian”. No origin, background,

opinion, belief, lifestyle – and no combination of these – has a monopoly

on what it is to be Australian. Our diversity is our strength; and the

beauty of our law is that it looks beyond these things and sees us all as

equal members of a just society.

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Amendments

11 August 2015 - correction to Decision on coversheet