El-Mouelhy v QSociety of Australia Inc (No 3)

[2015] NSWSC 1069

Supreme Court

New South Wales

Medium Neutral Citation:	El-Mouelhy v QSociety of Australia Inc (No 3) [2015] NSWSC 1069
Hearing dates:	17 July 2015
Date of orders:	05 August 2015
Decision date:	05 August 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Rulings on imputations.
Catchwords:	DEFAMATION – procedure – pleadings – imputations – capacity – requirement for imputations to differ in substance – requirement of precision
Legislation Cited:	Civil Procedure Act 2005 (NSW) Defamation Act 2005 (NSW) Defamation Act 1974 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	El-Mouelhy v QSociety of Australia Inc [2015] NSWSC 545 El-Mouelhy v QSociety of Australia Inc (No 2) [2015] NSWSC 990 Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669
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 (Fourth Defendant) Ralf Shumann (Fifth Defendant)
Representation:	Counsel: B Connell (Plaintiff) S Chrysanthou (Defendants) Solicitors: O’Connor Legal (Plaintiff) Banki Haddock Fiora (Defendants)
File Number(s):	2014/377391
Publication restriction:	None

Judgment

1. HER HONOUR: Proceedings for defamation are governed by a practice note (SC CL 4, promulgated on 5 September 2014). The practice note contemplates that such proceedings should ordinarily be able to be prepared for hearing with only two listings before the Court. At the first listing, the parties are expected to be ready to argue any objections to the statement of claim maintained by the defendant and the defendant is required to inform the Court whether the element of publication is admitted. At the second listing, the parties are expected to be ready to argue any objections to the defence and the reply and to make any application for interlocutory steps.

2. This is an action for defamation. The parties in these proceedings have had three rounds of argument in respect of the form of the plaintiff’s pleadings. This judgment determines the matters raised in the third round. The earlier objections were determined in my judgments in El-Mouelhy v Q Society of Australia Inc [2015] NSWSC 545 and El-Mouelhy v Q Society of Australia Inc (No 2) [2015] NSWSC 990.

3. Unsurprisingly, there has been a degree of overlap in the issues raised at each hearing. Meeting the important requirement of maintaining a consistent approach has proved challenging.

4. The truncation of the process of determining the final state of the plaintiff’s pleadings is not due to the conduct of one or other party exclusively. Each has made choices contributing to that course of events. The defendants sought a second opportunity to challenge the imputations. The plaintiff has pleaded new imputations plainly governed by previous rulings. The matters complained of pose their own challenges, conveying elusive and disparate ideas. Whatever the causes, it can nonetheless be said, in my view, that the time has come to move towards the second listing.

First matter complained of

5. The structure of the first matter complained of is first to assert that “there are three choices for Muslims when it comes to dealing with non-Muslims”. Those choices are identified as “violent jihad”, “conversion” and “dhimmitude”. Dhimmitude is identified as what “we are dealing with when it comes to halal certification” (lines 114-117). The first matter complained plainly points to the plaintiff as the archetypal halal certifier in Australia. Later, it is asserted that it has been “proven” that profits from halal certification go to fund “militant groups” (including Hamas, “a terrorist organisation”) and that nearly 60% of halal-certifying organisations overseas have connections with the Muslim Brotherhood, an organisation identified in the first matter complained of as “a transnational political organisation that supports terrorism”. The matter then asserts that it is reasonable for Australians to ask “where does the money [from halal certification] go?” (line 406).

6. The first objection is that imputation 16(c) does not differ in substance from imputation 16(d) or, alternatively, does not arise in addition to that imputation and should be pleaded as an alternative. The two imputations are:

16(c)   That the plaintiff was a person who believed that all Australians should be subject to repressive Sharia law (a proposed new imputation).

16(d)   That the plaintiff was part of a push for instituting repressive Sharia law in Australia (an existing imputation).

7. Imputation 16(c) is the plaintiff’s third attempt to distill the defamatory sense of a suggestion that the plaintiff is “un-Australian”. That is the precise term used in the matter complained of (at line 63). The first attempt adopted that term, pleading an imputation “that the plaintiff is un-Australian”. I struck out that imputation in El-Mouelhy (No 1) at [10] (and see the addendum to the judgment). I held that the term “un-Australian” is a colloquial or slang phrase with no settled meaning, the use of which should not be permitted in the imputation.

8. The plaintiff attempted to re-plead the imputation as follows:

That the plaintiff is a person who has values opposed to the fundamental human right and Australian value of freedom of religion and Australian values of choice, a fair go and freedom.

9. I struck out that imputation, accepting that it did not identify any defamatory act or condition that could be pleaded to and was accordingly apt to cause embarrassment (El-Mouelhy (No 2) at [21] to [23]).

10. With that history, the plaintiff now propounds an imputation which adopts the language of another, accepted imputation. The plaintiff contends that the new imputation differs in substance from that imputation since imputation 16(c) focuses on the plaintiff’s belief whereas 16(d) focuses on his act of participating in a push for Sharia law.

11. The defendants’ objection invokes r 14.30 of the Uniform Civil Procedure Rules 2005 (NSW), which imposes a requirement that the plaintiff must specify each imputation upon which he or she relies and prohibits reliance upon “two or more imputations alleged to be made by the defendant by means of the same publication of the same matter unless the imputations differ in substance.” The rule served an important function when, according to the law of New South Wales, the plaintiff had a cause of action in respect of each defamatory imputation conveyed by a defamatory publication: see s 9(2) of the Defamation Act 1974 (NSW) (now repealed). That provision created an obvious incentive for the proliferation of imputations; the rule was plainly directed to the vice of artificiality in that context.

12. The requirement that a plaintiff specify each imputation upon which he or she relies remains important since a number of the defences under the Defamation Act 2005 (NSW) are directed to the imputations rather than to the matter complained of. In my view, the discouragement to proliferation also has an abiding purpose; it serves to encourage plaintiffs to distill their action so as to be fought on the real issues avoiding (to the extent possible) arid debate as to the meaning of words.

13. In my view, the form of imputation 16(c) now propounded makes essentially the same attribution to the plaintiff as imputation 16(d). The first matter complained of makes no explicit reference to the plaintiff’s holding the relevant belief (that all Australians should be subject to repressive Sharia law). His position is inextricably connected with the so-called “push” (lines 102- 109). The two imputations represent the pleader’s endeavours to distill the inference to be drawn from the connection drawn by the publication between the business conducted by the plaintiff and the expressed apprehension as to the prospect of Sharia law being instituted in Australia.

14. I appreciate that a belief and an act are different things. In the context of the present case, however, I do not think they are different attributions conveyed by the first matter complained of. The belief is necessarily comprehended within participation in the push and could only be conveyed by the same material. For those reasons, I consider that reliance upon both imputations would trespass against the prohibition in r 14.30. The imputations should be permitted to be relied upon only as alternatives.

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

that the plaintiff in the conduct of the operations of the Halal Certification Authority in Australia was part of a push for Islamisation calculated to destroy the free, tolerant way of life of Australians.

16. That imputation was pleaded following a grant of leave after I rejected an imputation “that the plaintiff was part of a global push for Islamisation calculated to destroy Australian values of freedom and tolerance”.

17. In rejecting that imputation, I accepted a submission put by Ms Chrysanthou, which I summarised as follows (in El-Mouelhy (No 2) at [30]):

Ms Chrysanthou submitted that the imputation suffers from the same problems as imputation 16(d) by reason of the use of the phrase "part of a global push". She further submitted that the contention that a global push could be calculated to destroy Australian values of freedom and tolerance is illogical. On that basis, she submitted that the imputation is impossible to plead to and should be struck out.

18. It is clear that imputation 16(e) suffers from the same vice.

19. In fairness to the plaintiff, it should be noted that, in El-Mouelhy (No 1), I recorded that I had not understood the defendants to take issue with the proposition that the matter complained of conveyed the notion that there is in existence a global push for Islamisation calculated to destroy Australian values of freedom and tolerance (at [16]). In the second round of objections, however, a different point was made. My ruling on that issue is governed by my judgment in El-Mouelhy (No 2).

20. The next objection is to imputation 16(e)(a), which is:

that the plaintiff was part of a push for Islamisation which is putting at risk the freedom of speech, equality of rights, freedom of religion and democratic rights of Australians.

21. The objection is that the imputation is bad in form, since it does not attribute any particular act or condition to the plaintiff that can be responded to by way of defence.

22. The plaintiff contended that the so-called “push” is depicted in the matter complained of as giving rise to the threat of the consequence specified in the imputation. The difficulty lies in the logic of the allegedly threatened consequence. To the extent that the imputation attributes any act or condition to the plaintiff, it is that he “was part of a push for Islamisation”. In the absence of any greater specification, the imputation can only derive its defamatory sense from the contention that Islamisation itself puts the nominated freedoms and rights at risk. The matter complained of may demonise Islamisation but, to the ordinary reasonable reader, that is not to demonise the plaintiff. It is akin to contending that an imputation “that the plaintiff is a Muslim” would be defamatory. Plainly, it would not.

23. The foregoing remarks may be said to pertain to the question whether the imputation is capable of being defamatory (which was not the objection) but they serve to illustrate the absence of any cogent meaning in the imputation itself. As noted in one of my earlier judgments, that is not to criticise the pleader. The logic of the matters complained of is difficult to follow, at times evidently suggesting some undifferentiated threat to mankind from the business of halal certification. That recognition does not obviate the need, in accordance with the dictates of the Civil Procedure Act 2005 (NSW), to manage the case sought to be prosecuted by the plaintiff in such a way as to ensure that the real issues are appropriately identified so as to avoid embarrassment both at the interlocutory stages and in the trial.

24. The next objection is to imputations 16(h) and (h)(a), which are:

16(h)   That the plaintiff so conducted himself as to give rise to reasonable grounds to suspect him of providing financial support to one or more extremist Islamic organisations.

16(h)(a)   That there are reasonable grounds for suspecting that the plaintiff has been providing financial assistance to one or more extremist Islamic organisations.

25. There were initially two objections to those imputations. One was an objection as to form based on the decision in Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669. That objection was ultimately not pressed in light of what was said in Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 at [28].

26. Separately, the defendants submitted that those imputations cavil with my ruling in El-Mouelhy v Q-Society of Australia Inc (No 1) at [19] to [22]. It is clear from that judgment at [21] that, at the time of publication of that judgment, I was of the view that the first matter complained of was not reasonably capable of conveying the previous iteration of imputation 16(h) (that the plaintiff is reasonably suspected of providing financial support to terrorist organisations). Accordingly, it may be accepted that the imputations now proposed cavil with that ruling.

27. The judgment does not specify whether the ruling was a determination of a separate question or rather in the nature of a strikeout application but, in any event, a ruling is now sought in respect of different (albeit slightly) imputations.

28. Having considered the content of the first matter complained of again and the matters raised in Mr Connell’s lengthy written submissions, I have, with some equivocation, reached the view that those imputations should go to the jury. Upon analysis, the only way in which the plaintiff’s conduct of his business could be thought to have any connection with the many perceived threats described by the presenter is through financial support or assistance. If it be thought that the connection is only conveyed through the loosest of thinking, the answer is that that is precisely the kind of thinking invited by the matter complained of.

Second matter complained of

29. The next objection is to imputation 25(b), which is:

That the plaintiff, through his conduct of the operations of the Halal Certification Authority in Australia, sought to erode the Australian values of freedom of religion, freedom of speech and democracy.

30. That imputation was pleaded to replace an imputation struck out in El-Mouelhy (No 2):

That the plaintiff sought to erode Australian values of freedom of religion, speech and democracy.

31. The previous form of the imputation was struck out on the ground that it failed to distill any defamatory act. In the judgment at [34] I said:

Mr Connell submitted that the imputation obviously refers to the plaintiff's conduct of the business of halal certification. If that is the act or condition which is sought to be attributed to the plaintiff by the imputation and if it is contended that by that business a person could seek to erode Australian values then that should have been pleaded, but that is not what the imputation says. The imputation is impermissibly unclear and imprecise and should be struck out.

32. By those remarks, I did not mean to indicate my approval of an imputation in the form now propounded. The phrase “through his conduct of the operations of the Halal Certification Authority” does nothing to specify the defamatory act or condition allegedly attributed to the plaintiff by the matter complained of. That imputation should be struck out.

33. The next imputation objected to is 25(c):

That the plaintiff in the conduct of the business of the Halal Certification Authority sought to advance the strategy of the Muslim brotherhood to sabotage Western institutions.

34. The objection is that the imputation is bad in form in that it is imprecise and fails to identify any act or condition allegedly attributed to the plaintiff by the matter complained of. In my view, there force in that contention. It has been said that a defamatory imputation must articulate the act allegedly attributed to the plaintiff with the specificity of an indictment. Care must be taken with such a comparison because an indictment often adopts the short form of reference to an offence. But the comparison with the particularity required of the Crown is a useful tool for analysing the degree of precision achieved in an imputation.

35. For example, in criminal proceedings for conspiracy to pervert the course of justice, it would not be enough for the Crown to allege that an accused, in the conduct of his business, sought to pervert the course of justice. The Crown would have to specify the physical acts alleged to have been committed by the accused and the state of mind with which those acts were alleged to have been committed. In my view, imputation 25(c) achieves no more than to make generic reference to the kind of conduct allegedly attributed to the plaintiff by the matter complained of without specifying that conduct.

36. The next objection is to imputation 25(d):

That the plaintiff in the conduct of the operations of the Halal Certification Authority of Australia was acting with the objective of advancing an Islamic push for worldwide domination through obtaining control of industries including the production, transport and sale of goods and their financing.

37. The imputation was objected to on the grounds of form and capacity. I would uphold the objection as to form.

38. As with imputations 25(b) and (c), the only act or condition specified is “the conduct of the operations”. The difficulty with that formulation is that it could refer to a broad range of activities. It is thus apt to cause embarrassment at the pleading stage and at the trial.

39. As to capacity, the second matter complained of makes some extravagant claims as to the objectives of Islamisation. Some might think it a stretch too far to attribute those objectives to the plaintiff but I think that would be an issue for the jury. However, since the imputation is bad for imprecision, it should be struck out.

40. The last objection is to imputations 25(g) and (h) as follows:

25(g)   That the plaintiff so conducted himself as to give rise to reasonable grounds to suspect him of providing financial support to one or more extremist Islamic organisations.

25(h)   That there are reasonable grounds for suspecting that the plaintiff has been providing financial assistance to one or more extremist Islamic organisations.

41. Following the withdrawal of the form objection based on Sergi, the only remaining objection is that those imputations are not reasonably capable of being conveyed by the second matter complained of. With some equivocation, I have reached the same conclusion as in respect of the similar imputations pleaded in respect of the first matter complained of. The second matter complained of conveys similar themes to those considered in the first matter complained of, and draws a connection between the business of halal certification and the many threats described by the presenter through financial support or assistance. Those imputations will go to the jury.

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Decision last updated: 10 August 2015