Habib v Radio 2UE Sydney Pty Ltd
[2010] NSWDC 244
•2 November 2010
CITATION: Habib v Radio 2UE Sydney Pty Ltd [2010] NSWDC 244 HEARING DATE(S): 13 August 2010
JUDGMENT DATE:
2 November 2010JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: Strike out application dismissed. See paragraph [146] for other orders. CATCHWORDS: PROCEDURE – defamation – form and capacity of imputations claimed by plaintiff – application by defendants to strike out imputations LEGISLATION CITED: Defamation Act 1974, s 7A CASES CITED: Amalgamated Television Services Pty Ltd v Marsden [1998] 43 NSWLR 158
Chapman v Australian Broadcasting Corporation [2000] SASC 146; (2000) 77 SASR 19
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Dey v Victorian Railways Commissioner [1949] HCA 1; (1949) 78 CLR 62
Drummoyne Municipal Council v Australian Broadcasting Commission [1990]21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 18
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 12
Grieg v WIN Television NSW Pty Ltd [2007] NSWSC 1118
Habib v Radio 2UE Pty Limited [2008] NSWDC 59
Habib v Radio 2UE Pty Limited [2009] NSWCA 231
Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 683
John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706
Jones v Skelton [1964] NSWR 485 at 491
Lewis v Daily Telegraph Ltd [1964 AC 234
Malcolm v Nation Wide News Limited [2007] NSWCA 254
Purcell & Anor v Cruising Yacht Club of Australia Pty Ltd & Ors [2003] NSWSC 245
Sergi v Australian Broadcasting Commission [1983] NSWLR 669
Trkulja v Yahoo! Inc & Anor [2010] VSC 215
Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148PARTIES: Mamdouh Habib (Plaintiff)
Radio 2UE Sydney Pty Ltd (First defendant)
Macquarie Radio Network Pty Ltd (Second defendant)FILE NUMBER(S): 2006/294377 COUNSEL: Mr R Rasmussen (Plaintiff)
Mr M Richardson (Defendants)SOLICITORS: Peter Erman (Plaintiff)
Banki Haddock Fiora (Defendants)
JUDGMENT
Table of Contents
Nature and context of the application [1] – [6] Procedural history [7] – [13] Principles [14] – [35] Transcripts of the broadcasts [36] – [37] Challenged imputations [38] – [40] Imputations pleaded in respect of broadcast by John Laws [41] Imputations pleaded in respect of broadcast by Steve Price [42] Imputations pleaded in respect of broadcast by Ray Hadley [43] Consideration of contentious imputations [44] – [144] John Laws broadcast
[45] – [110] Steve Price broadcast
[111] – [124] Ray Hadley broadcast
[125] – [144] Disposition and costs [145] Orders [146]
Nature and context of the application
1. These defamation proceedings arise from 3 radio broadcasts by the defendants, Radio 2UE Pty Ltd and Macquarie Radio Network Pty Ltd. The broadcasts took place on Thursday 18 August 2005. In those broadcasts, comments relating to the plaintiff were made variously, by John Laws, Ray Price, and Steve Hadley.
2. The plaintiff is a former detainee at Guantanamo Bay prison, where he was held because of accusations that he was involved in activities to do with terrorism. Following his release from detention, the plaintiff returned to Australia. Subsequently, on various occasions, he has publicly claimed to have been wrongfully detained and tortured by persons who were agents of the United States of America.
3. In August 2005, the plaintiff was a participant in an annual race event known as the Sydney City to Surf. The comments in the 3 broadcasts in question arose from the plaintiff’s participation in that event. The comments extended to aspects of the plaintiff’s past and present circumstances, including his condition of health and his dealings with Centrelink.
4. The plaintiff claims that the comments in question were derogatory of him, and held him up to public hatred, ridicule and contempt. Consequently, in these proceedings he seeks damages for alleged defamation.
5. In the present application, the defendants seek to strike out certain of the numerous imputations the plaintiff seeks to rely upon in a proposed further amended statement of claim [“PFASOC”]. The broadcasts in question have given rise to a total of 50 imputations claimed by the plaintiff. Many of these imputations are the subject of complaints by the defendants as to form, and as to whether they have the capacity to convey a defamatory meaning.
6. Once the current interlocutory issues have been determined, the proceedings will be listed for trial by jury pursuant to s 7A of the Defamation Act 1974.
Procedural history
7. In view of the lapse of time since the events in question it is relevant to set out the procedural history. The plaintiff filed these proceedings on 16 June 2006. On 16 June 2008, on the application of the defendants, orders were made by a Judge of this Court striking the proceedings out as an abuse of process : Habib v Radio 2UE Pty Limited [2008] NSWDC 59. Subsequently, those orders were set aside on appeal: Habib v Radio 2UE Pty Limited [2009] NSWCA 231. The application by the defendants for special leave to appeal from that decision was subsequently refused by the High Court on 23 April 2010.
8. Following remittal back to this court, a trial of these proceedings was scheduled to take place with a jury on 16 June 2010. For compelling practical reasons, the defendants sought to vacate the hearing date because the plaintiff sought to rely upon a PFASOC in which a number of further imputations were raised. Previous case management of the proceedings had not determined outstanding issues concerning the form and capacity of the imputations claimed by the plaintiff. The hearing scheduled for 16 June 2010 was therefore vacated, with the plaintiff to pay the costs wasted by the vacation of the hearing date. On that occasion, further orders were made directed at identifying the true matters in dispute.
9. The plaintiff now relies upon the PFASOC filed on 16 June 2010. That document, which has been marked MFI “1” raises a number of reformulated imputations that have given rise to the present strike-out application.
10. On behalf of the plaintiff, it was submitted that it was not appropriate to challenge the plaintiff’s pleaded imputations that this stage, these being matters that could be dealt with at the outset of the trial, as each imputation relied upon has to be considered in the context of the entire matter complained of. The defendants have sought orders on the contentious imputations in advance of the trial.
11. On considering the position, after having regard to the number of the imputations involved and the very real potential for the smooth progress of a jury trial to become interrupted, bogged down with detail, or unreasonably delayed by the need to deal with these arguments at a trial, I have preferred the approach suggested by the defendants that the imputations be considered in advance of the trial.
12. The defendants have submitted that the sheer number of the imputations that are now raised by the plaintiff are “now ridiculously excessive”, many of them not differing in substance from others, in a context where the John Laws broadcast was of approximately 5 minutes duration, and the Steve Price and Ray Hadley broadcasts were approximately 1.5 minutes and 3 minutes duration respectively. The defendants complain that the imputations now claimed by the plaintiff have evolved in “an ad hoc manner” such that “enough is enough” so as to attract strictures upon further amendment : Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [18]-[33].
13. Having considered those arguments, I have nevertheless taken the view that since there were no previous rulings on imputations during case management hearings, or at any of the directions hearings in the Defamation List, the plaintiff should be given a final opportunity to put his case into an appropriate procedural order for the purpose of achieving readiness for trial.
Principles
14. In the paragraphs that follow, for my own guidance, I have extracted and summarised from the applicable authorities to which I have been taken, the principles by which the issues raised by this application are to be determined.
15. An application to strike out imputations is akin to an application for summary judgment. The applicant defendant must therefore clearly demonstrate that the plaintiff has no arguable prospects at a trial of the issue under challenge : Dey v Victorian Railways Commissioner [1949] HCA 1; (1949) 78 CLR 62 per Dixon J at p 92 : General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 12.
16. In an application to strike out a pleaded imputation, the question for decision is whether the material published was capable of giving rise to the alleged defamatory imputations : Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 18.
17. The question of whether the words complained of convey a defamatory meaning is a question of law to be determined by the court and it is for the jury to decide whether the words complained of, do in fact convey a defamatory meaning, recognizing that the court will reject meanings which can only emerge as the product of some strained, forced, or utterly unreasonable interpretation : Jones v Skelton [1964] NSWR 485 at 491.
18. In determining what reasonable persons could understand the contentious words to mean, it must be remembered that the ordinary person does not live in an ivory tower and is not inhibited by a knowledge of the rules of construction, with the result that it is possible for that person to read between the lines in the light of general knowledge and experience of worldly affairs : Lewis v Daily Telegraph Ltd [1964] AC 234 per Reid LJ at 258.
19. The form in which an imputation is framed is a matter for the pleader. However, if an accusation is couched in the passive voice, it is necessary to specify the accuser : Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 per Hutley JA at 671B. If an imputation contains an accusation of misconduct, if nothing more is conveyed, it is nevertheless defamatory : Sergi, per Glass JA at 679B. A jury should generally not be required to consider accusations where the accuser is not identified : Sergi, per Glass JA at 680F-G. (Emphasis added)
20. The decision in Sergi was considered by Nicholas J in Grieg v WIN Television NSW Pty Ltd [2007] NSWSC 1118. His Honour was of the view that Sergi was a case of limited application because imputations cast in the passive voice could not be judged since they failed to identify the accuser. In Sergi, Nicholas J cited the decision of Kirby J in Purcell & Anor v Cruising Yacht Club of Australia Pty Ltd & Ors [2003] NSWSC 245 at [28]:
“ 28. A plaintiff, in framing an imputation, or a defendant in framing a contextual imputation, may, according to the defendants, formulate the imputation in one of two ways. Either the suspicion must be attributed to an authority figure, such as the police, or the imputation (as here) must be framed in terms of “reasonable grounds to suspect”, or the fact of having acted in such a way as to warrant suspicion. To say that the police “suspect” a person of murder is defamatory. It is also defamatory to say that there are reasonable grounds for suspecting that person committed murder.”
21. Ordinary principles of pleading require fairness to a defendant, and the need for clarity of issues at a trial, which in turn requires adequate specification by a plaintiff of the imputation or imputations sued upon : Drummoyne Municipal Council v Australian Broadcasting Commission [1990] 21 NSWLR 135, per Gleeson CJ at 136F.
22. Defamation may come in the form of snide insinuation or robust denunciation, or something more subtle in between those two extremes : Drummoyne, per Gleeson CJ at 137D.
23. Where the matter published concerning a person leaves a powerful impression that the person concerned is, for example, a scoundrel, but it is very difficult to discern exactly what that person is said or suggested to have done wrong, the requirement of a plaintiff to specify an imputation cannot go beyond doing the best that can reasonably be done in the circumstances : Drummoyne, per Gleeson CJ at 137E-F, approving the given example of John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706.
24. Ultimately, recognizing that interpretations by reasonable persons may differ, it is a matter for a jury to determine whether or not, in the mind of a reasonable person, the matter complained of has the capacity to convey a defamatory meaning : Griffith v John Fairfax Publications [2004] NSWCA 300 per Tobias JA at [19], Malcolm v Nation Wide News Limited [2007] NSWCA 254 per Beazley JA at [14].
25. In the case of a broadcast, the ordinary reasonable listener is assumed to be a person of fair average intelligence, who is neither perverse, morbid, suspicious of mind nor avid for scandal; who does not live in an ivory tower, but can, in the light of their general knowledge and experience of worldly affairs, read between the lines and may, at times, be understandably prone to engage in a certain amount of loose thinking : Griffith, per Beazley JA at [14].
26. A wide degree of latitude is to be given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual : Griffith, per Beazley JA at [14].
27. In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 683, at p 688B-C, Hutley JA stated the position regarding imputations of serious import to be as follows:
“ Though a defendant is entitled to know the case he has to meet, it is strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words it has used, so that it is embarrassed in justifying it. This must mean it does not know what it is alleged an ordinary reasonable hearer would make of it.”
28. In cases where reasonable persons may differ as to the conclusion to be drawn on the matter complained of, the issue of whether the imputation was in fact conveyed must be left to the jury : Amalgamated Television Services Pty Ltd v Marsden [1998] 43 NSWLR 158, per Hunt CJ at CL at pp 164-165. This means that if no reasonable mind, properly instructed, could conclude that an imputation conveyed a defamatory meaning, the matter was not to go to the jury.
29. In applying these principles, the mode of publication is a relevant matter to be considered, especially in the case of publications of a transient nature such as in the case of a broadcast by the electronic media : Marsden, per Hunt JA at pp 165G-166A.
30. The test of reasonableness is the overriding guiding consideration for determining whether the matter complained of is capable of conveying any of the imputations pleaded : Marsden, p 166F-G.
31. In Drummoyne, Gleeson CJ propounded the test of whether the words used to describe an imputation are clear and precise, is to be resolved by considerations of practical justice in the circumstances of the particular case rather than by preoccupation with considerations of linguistic refinement : Drummoyne, p 131. In doing so, his Honour the Chief Justice approved the test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155, namely:
“… The issue which has to be decided in the 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.”
32. I must bear in mind that there are limiting factors in the path of a quest for precision where within the claimed insinuations “… there is a considerable lack of specificity in the matter published.” The “practical content of the requirement” for specificity aimed at avoiding confusion has to be determined by considerations of practicality : Drummoyne, per Gleeson CJ at 140A-F.
33. The essence of the exercise is to seek to avoid confusion occurring at a trial.
34. In Trkulja v Yahoo! Inc & Anor [2010] VSC 215, at [14] Kaye J drew attention to the need for an imputation to be supported “by more than the pleader’s ingenuity”, approving Chapman v Australian Broadcasting Corporation [2000] SASC 146; (2000) 77 SASR 19, per Lander J at [6].
35. I will base my consideration of the contentious imputations on the foregoing principles.
Transcripts of the broadcasts
36. Transcripts of the 3 broadcasts were respectively tendered as Exhibits “A”, “B” and “C”, in the order pleaded, rather than in the order in which they had been broadcast.
37. The first pleaded broadcast, by John Laws, occurred at 10.33am on 18 August 2006. The transcript of that broadcast is reproduced at Appendix I to these reasons : Exhibit “A”. The second pleaded broadcast, by Steve Price, occurred at 4.07pm on 18 August 2006. The transcript of that broadcast is reproduced at Appendix II: Exhibit “B”. The third pleaded broadcast, by Ray Hadley, occurred at 10.19am on 18 August 2006. The transcript of that broadcast is reproduced at Appendix III : Exhibit “C”. A recording of the first and second broadcasts was tendered as Exhibit “D” on the strike-out application.
Challenged imputations
38. A total of 50 imputations were pleaded by the plaintiff within the following framework:
(a) As to the first broadcast : - by John Laws, the claimed imputations are set out in paragraph 3 of the PFASOC, at subparagraphs (a)-(t), incorporating some internally pleaded alternatives;
(c) As to the third broadcast : - by Ray Hadley, the claimed imputations are set out in paragraph 7 of the PFASOC, subparagraphs (a)-(m), incorporating some internally pleaded alternatives.(b) As to the second broadcast : - by Steve Price, the claimed imputations are set out in paragraph 5 of the PFASOC, subparagraphs (a)-(i), incorporating some internally pleaded alternatives;
39. To enable an understanding of the overall context, and for comparative and cross-referencing purposes, the imputations sought to be pleaded in the PFASOC are set out in full in the paragraphs [41] to [43] below. The underlined portions of the text identify the imputations that were newly raised on 16 June 2010. Where it was appropriate to do so, I have annotated the imputations that are no longer the subject of challenges.
40. In respect of the remaining imputations that are challenged, I have referred to the respective arguments of the parties in setting out my reasons for determining whether or not the challenge has been successful. Where it was possible to do so, in several instances, on account of similarity of the issues for decision, for economy, I have cross-referenced my reasons where they applied to other imputations, rather than repeating the reasons.
Imputations pleaded in respect of broadcast by John Laws
41. Paragraph 3 of the PFASOC pleaded the following imputations:
(a) The Plaintiff exaggerates his claims he was physically tortured by US soldiers at Guantanamo Camp X-Ray.
(This imputation is no longer challenged by the defendants.)
(b)
(i) The Plaintiff is a terrorist.
OR
(ii) The Plaintiff is a terror suspect.
(c)
(i) The Plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled.
OR
(ii) The Plaintiff is dishonest because he is trying to get himself a disability pension even though he is so fit he can run in the City to Surf and beat 40,000 people.
(d) The Plaintiff is an insider working for Al Qaeda
(e) The Plaintiff engaged in terrorist activities in Afghanistan
(g) The Plaintiff misleads and deceives university students.(f) The Plaintiff will not disclose that he received money for terrorist activities in Afghanistan
(This imputation is no longer challenged by the defendants.)
(h) The Plaintiff should be in gaol.(This imputation is no longer challenged by the defendants.)
(j) The Plaintiff does not want Australia to adopt strict Terror Laws because he might be implicated as a terrorist.
(i) The Plaintiff will not tell the truth.
(k) The Plaintiff is not wanted in Australia because he is a foe.
(This imputation is no longer challenged by the defendants.)
(l) The Plaintiff’s conduct in talking rubbish to University students is an absolute disgrace.(This imputation is no longer challenged by the defendants.)
(m)(i) The Plaintiff is a moron
(This imputation is no longer challenged by the defendants.)
OR
(ii) The Plaintiff should be stopped from talking to students at the University of Western Sydney because he is a moron .
(This imputation is no longer challenged by the defendants.)(n) The Plaintiff falsely claims he was depressed.
(This imputation is no longer challenged by the defendants.)
(o) The Plaintiff was doing something shady when he was in Afghanistan which he should not have done.(This imputation is no longer challenged by the defendants.)
(p) The Plaintiff will not pay back $11,000 in overpayments that his family received while he was in Pakistan and then Guantanamo Bay.(r) The Plaintiff dishonestly tried to get sickness benefits out of Centrelink even though he was paid a large sum of money by Channel Nine for an interview.(q) The Plaintiff has been in a running battle with Centrelink for a disability pension to which he was not entitled
(t) The Plaintiff is a traitor to Australia.(s) The Plaintiff engaged in terrorist activities in Pakistan prior to the 9/11 attacks.
Imputations pleaded in respect of broadcast by Steve Price
42. Paragraph 5 of the PFASOC pleaded the following imputations:
(a)
(i) The Plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled.
OR
(ii) The Plaintiff is dishonestly trying to obtain a disability pension.
(Withdrawn)(b) The Plaintiff falsely claims to be suffering clinical depression.
(Withdrawn)
(c) The Plaintiff falsely claims to be still suffering from being beaten and getting electrical shock treatment from US soldiers at Camp X-Ray.(Withdrawn)
(d) The Plaintiff is a bludger.(This imputation is no longer challenged by the defendants.)
(e) The Plaintiff received a pension when he was not entitled to it.(This imputation is no longer challenged by the defendants.)
(f) The Plaintiff is a professional at obtaining social security payments to which he is not entitled.
(This imputation is no longer challenged by the defendants.)
(g) The Plaintiff is a leech on Australia.(i) The Plaintiff conducted himself in such manner that The Telegraph and The Herald were justified in calling him a suburban terrorist .(h) The Plaintiff falsely claims he is not able to go to work because he is capable of running 16km in 80 odd minutes.
Imputations pleaded in respect of broadcast by Ray Hadley
43. Paragraph 7 of the PFASOC pleaded the following imputations :
(a)
(i) The Plaintiff is attempting to deceive Centrelink by seeking a disability pension to which he is not entitled.
OR
(ii) The Plaintiff is dishonest because he is trying to get his hands on a disability pension to which he is not entitled.
(c) The Plaintiff falsely claims he suffers clinical depression.(b) The Plaintiff is trying to live off taxpayers even though he is fit enough to run in the City to Surf.
(Withdrawn)
(d) The Plaintiff is arealterrorist.(This imputation is no longer challenged by the defendants.)
(f)
(e) The Plaintiff is opposed to strict terror laws in Australia because he might be implicated as a terrorist.(i) The Plaintiff is a low contemptible person .
(This imputation was not challenged by the defendant.)
OR
(ii) The Plaintiff does not deserve a disability pension because he is a low contemptible person.
(This imputation is no longer challenged by the defendants.)(g) The Plaintiff is an idiot.
(h)
(i) The Plaintiff trained with Al Qaeda in Afghanistan
OR
(ii) The Plaintiff had something to hide about his activities in Afghanistan .
OR
(iii) The Plaintiff’s activities were such as to warrant claims he trained with Al Qaeda in Afghanistan.
(i) The Plaintiff unfairly demanded access to a disability support pension when he had failed to reimburse taxpayers for $11,000 in overpayment.
(j) The Plaintiff falsely claims he is unfit to work.
(Withdrawn)
(k) The Plaintiff swindled 60 Minutes because he received a very large payment for an interview and told the Australian people and the 60 Minutes reporters absolutely nothing.(m) The Plaintiff falsely claims that the citizens of the USA are a pack of terrorists.(l) The Plaintiff should not have been speaking to university students on the war and terrorism because he did not come clean about his own terrorist activities.
Consideration of contentious imputations
44. In the paragraphs that follow, I set out my consideration of the individual imputations challenged by the defendants. In my consideration of the imputations under challenge, I have had regard to the fact that each of the broadcasts occurred in a relatively transient fashion by electronic media where the exposure was relatively brief, but the potential existed for the ordinary, reasonable listener to form a distinct impression of the plaintiff from the messages that were conveyed concerning him. The sub-headings and paragraphs that follow set out my consideration of the remaining matters in contention.
The John Laws broadcast
45. The defendants have not challenged the imputations claimed as pleaded in paragraphs 3(a), (g), (h), (k), (m), (n) or (o) of the PFASOC. The following sub-headings and paragraphs deal with the challenges to the John Laws imputations.
John Laws – 3(b)(i) - The Plaintiff is a terrorist
46. The defendants complain that the claimed imputation the plaintiff is an actual terrorist, as opposed to someone who may have sympathies with terrorists, or someone who has connections with terrorists, is incapable of arising.
47. It was further argued that the plaintiff’s admission that he was in Pakistan prior to the 9/11 attacks but was not answering questions about whether he had trained with Al Qaeda, and the suggestion that he had been up to something shady whilst in Afghanistan, together with the question of whether he was working as an insider for Al Qaeda, constitute insufficient material to support the claimed imputation.
48. This was a transient broadcast where the ordinary person listening to it would be entitled to read between the lines, especially where there was ambiguity arising from within broadcast, as I find to have been the case here. I consider that an ordinary reasonable listener would be entitled to conclude from the posed question “Are you an insider for Al Qaeda?” that the claimed imputation was open, especially since the text was derogatory of the plaintiff : Favell.
49. In my view, an ordinary person listening to the broadcast, when considering the transient but pointed references to the plaintiff and juxtaposition of “red hot” and “terrorist suspects”, and the challenge to the notion that the plaintiff was let go by the American authorities from Guantanamo Bay, and querying why he was “not in the slammer” for wrongdoing, taken together with the challenge of whether the plaintiff was a “foe”, would reasonably be entitled to conclude that the challenged imputation of being a terrorist, was conveyed as claimed by the plaintiff.
50. I therefore find the pleaded imputation in 3(b)(i) claiming that the plaintiff is a terrorist, is reasonably capable of arising from the John Laws broadcast, and I decline to strike it out.
John Laws – 3(b)(ii) - The Plaintiff is a terror suspect
51. The defendants complain that the claimed imputation that the plaintiff is a terror suspect is defective in form for its imprecision and they submit that it ought to be struck out because it does not specify who had the suspicion, or when that suspicion was held.
52. The defendants have by their submissions conceded that it is clear from the broadcast itself that “it was the Americans who held the suspicion - and that it was held before and during that time the plaintiff was held at Camp X-ray.”
53. In submissions made on behalf of the plaintiff, it was pointed out, correctly in my view, that the claimed imputation comes from the very words of the broadcast. In my view an ordinary reasonable listener would be entitled to conclude that those words were disparaging of the plaintiff. It is not correct to say that it is clear from the broadcast that only the Americans held the suspicion that the plaintiff was a terrorist. It is clear from the terms of the broadcast and from his choice of words that Mr Laws also suspected the plaintiff of being a terrorist when he reminded his audience of why the Americans had been holding the plaintiff at Guantanamo Bay, and when he raised the following questions in his song “Why did the Yankees let you go”; “Something doesn’t seem right”;” How come you are not in the slammer”, and similar expressions.
54. Therefore and for the same reasons I have outlined in paragraph [48] above, I find the pleaded imputation in 3(b)(ii), claiming that the plaintiff is a terror suspect, is in an appropriate form and is reasonably capable of arising from the John Laws broadcast, and I decline to strike it out.
John Laws – 3(c)(i) - The Plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled - OR – 3(c)(ii) – The Plaintiff is dishonest because he is trying to get himself a disability pension even though he is so fit and can run in the City to Surf and beat 40,000 people
55. The defendants complain that claimed imputations 3(c)(i) and 3(c)(ii), namely, that the plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled, or alternatively, that he is dishonest because he is trying to get himself such a pension even though he is so fit that he can run in the City to Surf and beat 40,000 people, are not genuine alternatives and they do not differ in substance.
56. It was further submitted that imputations can only be genuine alternatives when, although they differ in substance, only one or the other can arise. The defendants submitted the pleaded alternatives are bad in form and if allowed to proceed, will only add unnecessarily to the complexity of the trial.
57. In the course of debate over these imputations, the plaintiff abandoned the word “OR”, arguing that each claimed imputation can independently stand alone, as one speaks of a series of acts or attempts by the plaintiff, and the other speaks of a general characteristic or condition possessed by the plaintiff : Hepburn, at page 688C-D.
58. I consider that an ordinary person listening to the broadcast, using the permitted processes of thought, including a degree of loose thinking and reading between the lines, would reasonably be entitled to conclude that in each instance, the plaintiff was being accused of deception.
59. The reference to the expression “and yet” in connection with the plaintiff’s participation in the City to Surf race, juxtaposed to the reference to him wanting a disability pension, is within the range of the thought processes of the mind of an ordinary person, capable of carrying the pleaded imputation that he was attempting to deceive Centrelink by seeking such a pension to which he was not entitled. The juxtaposition of the thought provoking words “you realise” reasonably suggests an attempt to deceive by pointing to other arguably disentitling facts.
60. There is a material difference between the assertion, on the one hand, that the plaintiff is not disabled and is thereby seeking to deceive Centrelink with granting him a pension, and on the other hand, that the plaintiff’s disability must be insignificant because he is fit enough to beat 40,000 in a race. In my view it would be open to an ordinary reasonable listener to conclude that it was being suggested that the plaintiff’s claim to having a disability is a dishonest one.
61. I therefore find the separately pleaded imputations in 3(c)(i) and 3(c)(ii) claiming that the plaintiff was attempting to deceive Centrelink, and the plaintiff is dishonest in his attempts at obtaining a disability pension, are each reasonably capable of arising from the John Laws broadcast, and I therefore decline to strike them out.
John Laws – 3(e) - The Plaintiff engaged in terrorist activities in Afghanistan
62. The defendants complain that the claimed imputation the plaintiff engaged in terrorist activities whilst in Afghanistan is incapable of arising as the only reference to Afghanistan in the entire broadcast is the words “What were you doing in Afghanistan? Were you up to something shady?”
63. The defendants submit those words cannot support an imputation as serious as an allegation of engaging in terrorist activities which were actually carried out in Afghanistan. The defendants further argued that the claimed imputation was also defective in form due to inherent imprecision, and queried whether the words “engaged in terrorist activities” meant the plaintiff had actually engaged in an act of terrorism, or whether it merely meant that he had trained with Al Qaeda or that he was an insider, “or something along those lines.”
64. The arguments raised by the defendants to the effect the claimed Afghanistan/terrorist imputation does not arise simply because Afghanistan is only mentioned in passing ignores the reality that the words complained of can support the claimed inference of the plaintiff having engaged in terrorist activity in Afghanistan. This is so because Mr Laws reminded his listeners that the plaintiff had been in Guantanamo Bay (as a terrorist suspect) and that since his release, he has never explained satisfactorily why that was so. The plaintiff also claims that the language used by Mr Laws was vague and extravagant, justifying the imputation relied upon : Favell; Hepburn; Drummoyne.
65. The broadcast in question made transient reference to the plaintiff having been in Afghanistan. An ordinary reasonable listener could conclude that this reference was of a somewhat mocking nature. An ordinary person would know that the juxtaposition of a recitation that the plaintiff had been detained by the “Yankees” in Guantanamo Bay and let go, taken together with a reference to the plaintiff also having been in Afghanistan, where, at the relevant time, there was a war against terrorism, and where Al Qaeda was mentioned, in connection with a question as to whether the plaintiff was working for Al Qaeda, were references to terrorist activity.
66. I therefore find the pleaded imputation in 3(e) claiming that the plaintiff was “engaged in terrorist activities in Afghanistan”, is reasonably capable of arising from the John Laws broadcast, and I decline to strike it out.
John Laws – 3(f) - The Plaintiff will not disclose that he received money for terrorist activities in Afghanistan
67. The defendants complain that the claimed imputation the plaintiff will not disclose that he received money for terrorist activities in Afghanistan is incapable of arising as the only material that could conceivably be available to support this imputation is the reference in the song forming part of the broadcast and which used the words “… will we ever know where the money came from”.
68. It was argued that there is nothing in the broadcast that can possibly support an imputation that any money was received for terrorist activities in Afghanistan, or for any kind of terrorist activity, the only other references to money in the broadcast being references to the disability pension and to a payout from the 60 Minutes program. In this regard, it was argued that an ordinary reasonable listener could not draw any link between those references and “terrorist activities in Afghanistan”.
69. It is clear that the terms of the song within the broadcast are capable of raising a question in the mind of an ordinary reasonable listener as to where the plaintiff got the money to enable him to travel to Pakistan and Afghanistan when he was on a disability pension. The words of the song in question raised a link between money and Afghanistan. In my view, an ordinary reasonable listener could interpret the song, and the reference to money and Afghanistan, as being a scornful comment upon the veracity of any of the plaintiff’s claims. In my view, this is sufficiently precise to constitute a reference to an act of receiving money for terrorist activities and as such, it is arguably capable of arising, so as to require that the question be left to the jury to determine : Hepburn.
70. I have already determined that the claimed imputations concerning the plaintiff being a terrorist, or a terror suspect, arise from the broadcast in question : 3(b)((i) and 3(b)(ii) above. The John Laws broadcast raised the question of “Will we ever know where the money came from”. In my view it is open for an ordinary reasonable listener to conclude that this was a reference to money received by the plaintiff. The question was asked in juxtaposition with the question of whether plaintiff was “an insider working for Al Qaeda”. An ordinary reasonable listener would reasonably be expected to infer from this, that the plaintiff had received money whilst working for that organisation in connection with terrorist activities.
71. I therefore find the pleaded imputation in 3(f) claiming that the plaintiff “will not disclose that he received money for terrorist activities in Afghanistan”, is reasonably capable of arising from the John Laws broadcast, and I decline to strike it out.
John Laws – 3(i) - The Plaintiff will not tell the truth
72. The defendants complain that the claimed imputation the plaintiff will not tell the truth is imprecise and ought to be struck out.
73. The claimed imprecision is that it is unclear whether the imputation means the plaintiff is simply a liar, or whether it means that he is staying silent when he ought to speak up about what happened when he was in Pakistan/Afghanistan.
74. The defendants also claimed it was unclear whether the imputation is said to be a general condition or characteristic inherent to the plaintiff, that is, untruthfulness, or whether it is said to be linked to a particular issue such as whether he is an Al Qaeda insider. In substance, the complaint asserts an imprecision within the subject matter of the imputation, namely whether the claimed imputation relates to a specific act of untruthfulness, or whether it relates to a general condition of untruthfulness in the plaintiff.
75. The John Laws broadcast raised questions as to what the plaintiff had been doing in Afghanistan, and as to whether the plaintiff’s activities there were shady, implying some form of illicit activity, and also raising the question of whether the plaintiff was an insider working for Al Qaeda. All these questions begged answers in the minds of an ordinary reasonable listener. In fact the broadcast raised a challenge doubting whether the truth would be forthcoming from the plaintiff on these matters. This is so because of the use of the expressions “Tell us where the truth is at” in juxtaposition with the phrase “bugger all chance of that”.
76. Although the question under consideration was rhetorical, and was answered in this manner, I consider that an ordinary person listening to these expressions would be reasonably entitled to conclude that it was being asserted that the plaintiff would not tell the truth about these matters.
77. I therefore consider that the pleaded imputation in 3(i) claiming that the plaintiff “will not tell the truth”, is reasonably capable of arising from the John Laws broadcast. I see no other reasonable interpretation of the colloquial phrase that was employed, namely, “bugger all chance of that”.
78. Furthermore, the plaintiff argued, correctly in my view, that an ordinary reasonable listener could conclude the broadcast was of a generally scornful tone of the broadcast dealing with the plaintiff’s claims. That, in juxtaposition with the suggestion that the plaintiff would not answer any questions about whether he had trained with Al Qaeda, or “where the truth is at”, and taken together with the colloquial phrase identified in the previous paragraph, could suggest to an ordinary reasonable listener that a general condition of untruthfulness in the plaintiff is being conveyed by the imputation. This requires that the jury consider the issue.
79. I therefore find the pleaded imputation in 3(i) claiming that the plaintiff “will not tell the truth”, is reasonably capable of arising from the John Laws broadcast, and I decline to strike it out.
John Laws – 3(j) - The Plaintiff does not want Australia to adopt strict Terror Laws because he might be implicated as a terrorist
80. The defendants complain that the claimed imputation that the plaintiff does not want Australia to adopt Strict Terror Laws because he might be implicated as a terrorist, is defective in form and is imprecise.
81. The defendants argue that the words “might be implicated” are “hopelessly vague”. In this regard, attention was drawn to possible differing meanings, namely, whether the strict terror laws would catch the plaintiff because he would be implicated as a terrorist guilty under such laws, or whether the strict terror laws, and any accompanying perception of unfairness arising from an application of such laws, could lead to the plaintiff being unfairly branded as a terrorist, even though he may be innocent. A further potential meaning was identified, namely, whether the imputation meant the plaintiff could simply be harassed as opposed to being charged or prosecuted.
82. The defendants claim the link between the first and second parts of the imputation are unclear, claiming the issue as expressed, is that the plaintiff was not wanting terror laws, not that he was publicly advocating that they not be adopted, and is concealing the true position for such advocacy. The substance of the defence argument here is that simply, there is nothing defamatory to the concept of not wanting Australia to adopt strict terror laws. In the alternative, the defendants argue that if there is a sting in the words “he might be implicated as a terrorist”, then the imputation would not differ in substance from 3(b)(ii), and should therefore be struck out on that account for duplicity.
83. On behalf of the plaintiff if it was argued that any uncertainty that could arguably arise from the imputation relied upon, could be cured by adding the following words to the end of the claimed imputation, namely, “by those laws”. The plaintiff submitted that the addition of such words would make the imputation abundantly clear, namely, that if “Australia were to adopt the strict terror laws from the US then his opposition to them is duplicitous because his own unexplained activities might very well be caught by their strictness”. The plaintiff claims the sting from the words complained of arises from the notion of the asserted inherent duplicity of his protestations about terror laws.
84. In my view the defendant’s argument involves unreasonable resort to sophistry. The words “might be implicated” are clearly capable of raising in the mind of the ordinary reasonable listener the question of possible wrongdoing on the plaintiff’s part in a context that requires consideration by the jury.
85. In respect of imputation 3(j), the plaintiff has sought leave to rely upon the additional words “by those laws” and in the circumstances, I grant such leave.
86. The broadcast said of the plaintiff “he also warned [University Students] Australia should not adopt strict terror laws from the US”. The broadcast questioned the plaintiff’s role in giving such addresses to university students. The juxtaposition of the quoted statement was the plaintiff’s explanation for his stance, namely “they can pick you up, take you away for seven days, tell you they are gonna rape your wife and kids …”.
87. Taking these expressions in isolation, it might be fanciful for an ordinary person to conclude that the plaintiff “does not want Australia to adopt strict Terror Laws because he might be implicated as a terrorist”. Such an interpretation would, on an isolated consideration of the expression in question, be a contorted one, if viewed in such isolation. However, when the transient nature of the broadcast is taken into account, and when the broadcast is taken as a whole, in an overall view, together with the insinuation that the plaintiff is a terrorist or was a terror suspect, I consider that a reasonable person would be entitled to conclude that the claimed imputation could arise.
88. I therefore find the pleaded imputation in 3(j) claiming that the plaintiff “…“does not want Australia to adopt strict Terror Laws because he might be implicated as a terrorist”, is in an appropriate form and is reasonably capable of arising from the John Laws broadcast, and I decline to strike it out.
John Laws – 3(p) - The Plaintiff will not pay back $11,000 in overpayments that his family received while he was in Pakistan and then Guantanamo Bay – AND – 3(q) - The Plaintiff has been in a running battle with Centrelink for a disability pension to which he was not entitled
89. The defendants complain that the claimed imputations in 3(p) and 3(q), namely, that the plaintiff will not pay back $11,000 in overpayments that his family received while he was in Pakistan and then Guantanamo Bay – imputation 3(p), and the imputation that the plaintiff has been running a battle with Centrelink for a disability pension to which he was not entitled – imputation 3(q), are imputations that do not differ in substance.
90. It is claimed that this is so because the “running battle” with Centrelink for the disability pension in question relates to a failure to pay back the $11,000 in overpayments received by the family of the plaintiff when he was in Guantanamo Bay and in Pakistan.
91. The defendants further argued that imputation 3(q) is also defective in form and ought to be struck out because the word “entitled” is imprecise, not being a word used in the broadcast, thus raising questions as to whether it means legally entitled or morally entitled.
92. The broadcast stated that Centrelink refused to grant the plaintiff a disability benefit because he has not paid back $11,000 in overpayments whilst he was in Pakistan and then Guantanamo Bay. In my view, an ordinary person listening to the broadcast could reasonably conclude that this meant the plaintiff has refused or will not pay back such overpayments. I therefore find the pleaded imputation in 3(p) claiming that the plaintiff “… will not pay back $11,000 in overpayments that his family received while he was in Pakistan and then Guantanamo Bay”, is reasonably capable of arising from the John Laws broadcast, and I decline to strike it out.
93. The broadcast in question makes specific reference to the plaintiff’s running battle with Centrelink for a disability pension. That statement was made in juxtaposition with a reference to the plaintiff’s claim that he was depressed. In the same transient broadcast it was stated that the plaintiff was “saying he needs a disability allowance”. In my view, reading between the lines, an ordinary person would conclude that the broadcast makes challenges to the plaintiff’s bona fides in a sceptical manner in relation to his entitlement to the pension which he claims.
94. The context of discussion on the entitlement clearly raises the suggestion that the plaintiff did not have a legal entitlement to the disability pension. I have concluded that an ordinary reasonable listener would be entitled to assume that to qualify for a disability pension, which is a legal entitlement if the criteria for eligibility are fulfilled, one must in fact have a disability. The juxtaposition of the content of the broadcast concerning the plaintiff’s participation in the City to Surf race, raises a claim of disentitlement, which in my view, constitutes an imputation that must be left to be considered by the jury.
95. I therefore find the pleaded imputations in 3(p) and 3(q) claiming that the plaintiff “… will not pay back $11,000 …” and “…has been in a running battle with Centrelink for a disability pension to which he was not entitled”, are in the appropriate form and are reasonably capable of arising from the John Laws broadcast, and I decline to strike it out.
John Laws – 3(r) - The Plaintiff dishonestly tried to get sickness benefits out of Centrelink even though he was paid a large sum of money by Channel Nine for an interview
96. The defendants complain that the claimed imputation the plaintiff dishonestly tried to get sickness benefits out of Centrelink, even though he was paid a large sum of money by Channel Nine for an interview, is incapable of arising.
97. In this regard, it is claimed the words “Remember him on 60 Minutes, he was paid a huge quid by Channel Nine to do that interview and that’s obviously not helping him in his cause to get sickness benefits out of Centrelink”. It was argued that those words are incapable of establishing dishonesty by way of some representation the plaintiff had made to Centrelink. There is no suggestion that the plaintiff had in any way concealed anything whatsoever about the payout he received from Channel Nine.
98. The broadcast in question stated that the plaintiff “was paid a huge quid by Channel Nine” to do an interview “and that’s obviously not helping him in his cause to get sickness benefits out of Centrelink”.
99. On behalf of the plaintiff, it was claimed that the alleged dishonesty is implied from the general tone of the entire broadcast which, it was submitted, poured scorn on the veracity of the plaintiff’s claims at every turn. Such an impression, when taken together with the words of the song in which the listener is reminded of the asserted inability of the plaintiff to tell the truth, carries with it, a great implication. In my view an ordinary reasonable listener would detect the argued undertone of the broadcast was that the plaintiff was making dishonest claims and shouldn’t be believed.
100. In my view this is a robust question that should be considered by the jury as it is in my view, an imputation that is arguably capable of rising in the mind of an ordinary reasonable listener.
101. In my view, an ordinary person “reading between the lines” of such a broadcast, even when engaging in loose thinking, would reasonably conclude from the broadcast in question, that the plaintiff was dishonestly trying to get sickness benefits from Centrelink.
102. I therefore find the pleaded imputation in 3(r) claiming that the “The Plaintiff dishonestly tried to get sickness benefits out of Centrelink even though he was paid a large sum of money by Channel Nine for an interview” is reasonably capable of arising from the John Laws broadcast, and I decline to strike it out.
John Laws – 3(s) - The Plaintiff engaged in terrorist activities in Pakistan prior to the 9/11 attacks
103. The defendants complain that the claimed imputation the plaintiff engaged in terrorist activities in Pakistan prior to the 9/11 attacks is incapable of arising because the broadcast cannot sustain an allegation that the plaintiff engaged in terrorist activities, or that the plaintiff engaged in such activities in Pakistan, where the context was the reference to the plaintiff admitting he had been in Pakistan prior to the 9/11 attacks, and he was not answering questions as to whether he had trained with Al Qaeda.
104. The broadcast in question stated that the plaintiff “made admissions he was in Pakistan prior to the 9/11 attacks but he wouldn’t answer any questions about whether or not he had trained with Al Qaeda”.
105. In my view, an ordinary person reading between the lines, and engaging in a permissible degree of loose thinking, would reasonably be entitled to conclude that what was being suggested was that the plaintiff had been engaged in something turpitudinous whilst he was in Pakistan, and that therefore, he refused to answer questions about whether he had trained with a known terrorist organisation whilst there.
106. I therefore find the pleaded imputation in 3(s) claiming that the plaintiff “engaged in terrorist activities in Pakistan prior to the 9/11 attacks”, is reasonably capable of arising from the John Laws broadcast, and I decline to strike it out.
John Laws – 3(t) - The Plaintiff is a traitor to Australia
107. The defendants complain that the claimed imputation that the plaintiff is a traitor to Australia is incapable of arising. In this regard it was argued that the only conceivable reference available to support such an imputation is the question : “Mamdouh, are you friend or foe” . This was argued to be so because a traitor is a person who has carried out a treasonable act against his or her country, whereas the defendants argued, there was nothing in the broadcast that goes even close to asserting an allegation of that kind.
108. On behalf of the plaintiff it was submitted that the song embedded within the broadcast in particular suggests that the plaintiff was very disloyal, noting that he was not only in Pakistan before 9/11, but that he refused to answer questions about whether he had Al Qaeda training. It was further submitted that the friend or foe reference makes it clear that doubt was cast repeatedly upon the plaintiff’s loyalty to Australia. The John Laws broadcast also suggested that the plaintiff leave the country, thereby clearly leaving it open for an ordinary reasonable listener to conclude this was a suggestion of disloyalty on the plaintiff’s part.
109. Whilst the broadcast in question makes no specific reference to the plaintiff being an alleged traitor to Australia, it does make reference to the suggestion that the plaintiff ought to “shoot through”. In my view, an ordinary person would reasonably be entitled to conclude from this true blue expression that those words embodied a suggestion that the plaintiff leave the country. In the overall context, I consider that an ordinary person would be entitled to conclude from the insinuation that the plaintiff had trained with Al Qaeda, and that he was a traitor to Australia. These are questions for the jury.
110. I therefore find the pleaded imputation in 3(t) claiming that the plaintiff “is a traitor to Australia”, is reasonably capable of arising from the John Laws broadcast, and I decline to strike it out.
The Steve Price broadcast
111. The defendants have variously withdrawn their challenges or have not challenged the claimed imputations pleaded in paragraphs 5(a)(ii), (b), (c), (d), (e) or (f) of the PFASOC. The following sub-headings and paragraphs deal with the challenges to the Steve Price imputations.
Steve Price – 5(a)(i) - The Plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled – OR – 5(a)(ii) - The Plaintiff is dishonestly trying to obtain a disability pension
112. The defendants initially complained that the claimed imputations in paragraphs 5(a)(i) and 5(a)(ii) that the plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled – 5(a)(i), or the plaintiff is dishonestly trying to obtain a disability pension - 5(a)(ii), are not genuine alternatives, and do not differ from each other in substance. As a consequence, the defendants claim the plaintiff should be required to elect between these two claimed imputations.
113. In response to the objections raised by the defendants, the plaintiff indicated that the word “or” is no longer relied upon with the result that the claimed imputations are no longer framed in the alternative. The plaintiff now claims these imputations arise separately from each other.
114. These arguments are essentially the same as the arguments raised by the defendants in respect of the claimed imputations 3(c)(i) and 3(c)(ii) arising from the John Laws broadcast. For the reasons I have outlined in paragraphs [55] to [61] of my reasons that deal with those imputations, I reject the defendants’ submissions with respect to the claimed imputations 5(a)(i) and 5(a)(ii) that arise from the Steve Price broadcast.
115. I therefore find the pleaded imputations in paragraphs 5(a)(i) and 5(a)(ii) claiming that the plaintiff “… is attempting to deceive Centrelink by seeking a disability pension when he is not disabled” and the plaintiff “ … is dishonestly trying to obtain a disability pension” are both reasonably capable of arising from the Steve Price broadcast, I decline to strike either of them out.
Steve Price – 5(g) - The Plaintiff is a leech on Australia
116. The defendants complain that the claimed imputation the plaintiff is a leech on Australia is no different in substance to the imputation claimed in paragraph 5(b), namely that the plaintiff is a bludger.
117. The defendants also complain that the “leech” imputation was abandoned in the 15 June 2010 version of the draft questions prepared in anticipation of a jury trial on the following day, but now reappear without explanation in the PFASOC.
118. In answer to those submissions, the plaintiff argues that the prior version of the proposed questions did not limit the ambit of the ultimate questions that would be relied upon when the case was to be tried by the jury. Further, the plaintiff proffers the explanation that since the Steve Price broadcast actually used the words “leech on Australia”, this enables the plaintiff to raise this particular imputation, and no estoppel arises to prevent him from doing so, particularly since no prior objections were ruled upon, and no prior imputations have been struck out. In my view, the plaintiff’s submissions in this regard are self-evidently correct.
119. I therefore find the pleaded imputation in 5(g) claiming that the plaintiff “…is a leech on Australia”, is reasonably capable of arising from the Steve Price broadcast, and I decline to strike it out.
Steve Price – 5(i) - The Plaintiff conducted himself in such manner that The Telegraph and The Herald were justified in calling him a suburban terrorist
120. The defendants complain that the claimed imputation the plaintiff conducted himself in such a manner that The Telegraph and The Herald were justified in calling him a suburban terrorist is incapable of arising.
121. In this regard, the defendants submit that the words of the Steve Price broadcast “He’s even suing The Telegraph and The Herald for calling him a suburban terrorist. Now maybe he has a case, I wouldn’t call him a terrorist I’d call him a bludger”, render this claimed imputation “hopeless”.
122. In answer to the defendants’ submissions in this regard, the plaintiff argues that the claimed imputation arises and ought to be allowed to go to the jury. In this regard, the plaintiff argues that the force of the claimed imputation arises from the impression that was created by Mr Price in the entire broadcast, by which an ordinary reasonable listener could discern that what was being said cast scorn on all of the plaintiff’s claims, including this particular one. This is a jury question.
123. In my view, the irony within Mr Price’s comments by which he stated “… I wouldn’t call him a terrorist I’d call him a bludger” would not be lost upon an ordinary reasonable listener reading between the lines. In my view, that listener would be reasonably capable, from such irony, to draw the exact opposite meaning from Mr Price’s tone and content.
124. I therefore find the pleaded imputation in 5(j) claiming that the plaintiff “… conducted himself in such manner that The Telegraph and The Herald were justified in calling him a suburban terrorist”, is reasonably capable of arising from the Steve Price broadcast, and I decline to strike it out.
The Ray Hadley broadcast
125. The defendants have variously withdrawn or have now not challenged the claimed imputations as pleaded in paragraphs 7(c), (d), (f)(i) & (ii) or (j) of the PFASOC. The following sub-headings and paragraphs deal with the challenges to the Ray Hadley imputations.
Ray Hadley – 7(a)(i) - The Plaintiff is attempting to deceive Centrelink by seeking a disability pension to which he is not entitled – OR - The Plaintiff is dishonest because he is trying to get his hands on a disability pension to which he is not entitled
126. The defendants initially complained that the claimed imputations in paragraphs 7(a)(i) and 7(a)(ii) that the plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled – 7(a)(i), or the plaintiff is dishonestly trying to obtain a disability pension - 7(a)(ii), are not genuine alternatives, and do not differ from each other in substance. As a consequence, the defendants claim the plaintiff should be required to elect between these two claimed imputations.
127. In response to the objections raised by the defendants, the plaintiff indicated that the word “or” is no longer relied upon, with the result that the claimed imputations are no longer framed in the alternative. The plaintiff now claims these imputations arise separately from each other.
128. These arguments are essentially the same as the arguments raised by the defendants in respect of the claimed imputations 3(c)(i) and 3(c)(ii) arising from of the John Laws broadcast and the claimed imputations 5(c)(i) and 5(c)(ii) also arising from of the John Laws broadcast for the reasons I have outlined in paragraphs [55] to [61] of my reasons that deal with those imputations, I reject the defendants’ submissions with respect to the claimed imputations 7(a)(i) and 7(a)(ii) that arise from the Steve Price broadcast.
129. I therefore find the pleaded imputations in paragraphs 7(a)(i) and 7(a)(ii) claiming that the plaintiff “… is attempting to deceive Centrelink by seeking a disability pension when he is not disabled” and the plaintiff “… is dishonestly trying to obtain a disability pension” are both reasonably capable of arising from the Steve Price broadcast, I decline to strike either of them out.
Ray Hadley – 7(d) - The Plaintiff is real terrorist
130. The defendants complain that the claimed imputation the plaintiff is a real terrorist is defective in form and ought to be struck out. In support of that argument, the defendants claim the word “real” is both rhetorical and superfluous because it adds nothing to the word “terrorist”.
131. In developing their arguments to that effect, the defendants point to the fact that the Ray Hadley broadcast includes the words “… he told 100 students at the University of Western Sydney that the US, not him, was the real terrorist”. It was argued that in that context it was clear that the word “real” was used to distinguish the plaintiff from the US. Accordingly, it was argued that in the imputation there was no such context.
132. Initially, in written submissions in response, the plaintiff argued that an ordinary reasonable listener would not detect a rhetorical flourish in the words complained of. In this regard, the plaintiff argues that the sting in the claimed imputation is that the plaintiff is a real terrorist not a pretend one, or an alleged one, but a real or tangible one, and the objection raised ought to be dismissed in accordance with authority : Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 per Simpson J at [24], where her Honour stated that “… the time has come for defendant’s counsel to bury the practice of attacking imputations pleaded by plaintiffs on the basis that they are ‘rhetorical’ …”
133. I respectively adopt her Honour’s statement that I have cited from that case.
134. However, in oral argument the plaintiff, at the invitation of the defendants, abandoned the word “real” and the defendant then conceded that the transformed imputation pleaded had a capacity to convey a defamatory meaning.
135. It is therefore no longer necessary to rule upon the pleaded imputation in 7(d) claiming that the plaintiff “…is real terrorist”, arising from the Ray Hadley broadcast as the plaintiff has abandoned the adjectival description “real”.
Ray Hadley – 7(e) - The Plaintiff is opposed to strict terror laws in Australia because he might be implicated as a terrorist
136. The defendants complain that the imputation the plaintiff is opposed to strict terror laws in Australia because he might be implicated as a terrorist is defective in form and ought to be struck out.
137. In support of that argument the defendants point to the arguments they have raised in connection with their objections to imputation 3(j) in relation to the John Laws broadcast as the arguments are the same as those raised in respect of 3(j). Similarly, the plaintiff relies upon his submissions made in defence of the claimed imputation 3(j).
138. I reject the defendant’s arguments for the reasons I have outlined in paragraphs [80] to [88] in connection with my rulings on imputation 3(j).
139. I therefore find the pleaded imputation in 7(e) claiming that the plaintiff “…is opposed to strict terror laws in Australia because he might be implicated as a terrorist” is reasonably capable of arising from the Ray Hadley broadcast, and I decline to strike it out.
Ray Hadley – 7(k) - The Plaintiff swindled 60 Minutes because he received a very large payment for an interview and told the Australian people and the 60 Minutes reporters absolutely nothing
140. The defendants complain that the imputation the plaintiff swindled 60 Minutes because he received a very large payment from that programme and told the Australian people and the 60 Minutes reporters absolutely nothing, is incapable of arising.
141. In developing this argument, the defendants pointed to what is claimed to be the only relevant sentence in the Ray Hadley broadcast, to the above effect, and submit that these words are simply incapable of sustaining an allegation that 60 Minutes was “swindled”.
142. In answer to the objection raised, the plaintiff argues that imputation is capable of arising because the act of swindling comes from the allegation that the 60 Minutes reporters were told nothing by the plaintiff in return for the large payment received by the plaintiff, no doubt given on the promise that something of significance would be said.
143. In my view, this is a classic question that must be left to the good sense of the jury’s impression of what an ordinary reasonable listener would garner as the meaning of the words used. In this regard, I consider that the claimed imputation arguably arises, and as such, it ought to be left to the jury.
144. I therefore find the pleaded imputation in 7(j) claiming that the plaintiff “swindled 60 Minutes because he received a very large payment for an interview and told the Australian people and the 60 Minutes reporters absolutely nothing” is reasonably capable of arising from the Ray Hadley broadcast, and I decline to strike it out.
Disposition and costs
145. The plaintiff has been successful in resisting the application by the defendants to strike out the nominated imputations. In my view, it must follow that the defendants should therefore bear the cost of their unsuccessful application.
Orders
146. I make the following orders:
(a) I decline to strike out any of the imputations raised in the plaintiff’s proposed further amended statement of claim as contended by the defendants;
(b) The defendants are ordered to pay the plaintiff’s costs of their unsuccessful strike out application;
(c) The proceedings are stood over to 10.00am on 30 November 2010 for a directions hearing for the purpose of fixing a date for trial by jury, pursuant to s 7A of the Defamation Act 1974;
(e) Liberty to apply on 7 days notice if further orders are required.(d) To facilitate the directions hearing on 30 November 2010 the parties are directed to prepare draft consent orders to deal with all remaining pre-trial issues;
APPENDIX I
TRANSCRIPT OF THE BROADCAST BY
JOHN LAWS at 10.33am on 18 August 2006
2UE John Laws Morning Show
10.33am Thursday, 18 August 2005
1. John Laws: I’ll tell you who is red hot – this Mamdouh Habib. Now this fellow I really would like to meet; he claims he was physically tortured by US soldiers during his time in Camp X-ray but, ahhhh, obviously it hasn’t done him a whole lot of harm, he must have been referring to the rigorous fitness program they put the terror suspects through at Guantanamo because he is looking fit as fiddle to me, this fellow, and he’s come, ahh, come out on Sunday and run (giggles) in the City to Surf. You realise he is trying to get himself a disability pension and he’s just run in the City to Surf, uhhh, that’s about 14km. He’s done that in 82 minutes, not a bad effort for old Mamdouh Habib. He beat 40,000 people and yet he wants a disability pension? This is the same bloke who’s been running a battle with Centrelink for a disability pension. The Daily Telegraph reports today that Centrelink have refused to grant him a disability benefit because he hasn’t paid back $11,000.00 in overpayments that his family received while he was in Pakistan then Guantanamo Bay; he’d been receiving $470.00 a fortnight since 1999 after quitting his job as a small business owner because he claimed he was depressed. Well, maybe the run on Sunday helped but remember this is the bloke who made admissions that he was in Pakistan prior to the 9/11 attacks but he wouldn’t answer any questions about whether or not he’d trained with Al Qaeda. Remember him on 60 Minutes, he was paid a huge quid by Channel Nine to do that interview and that’s obviously not helping him in his cause to get sickness benefits out of Centrelink but he’s just a, he’s (giggles) he’s not just blazing a trail as a runner, he’s also been out filling the minds of university students with crap like this: “All the trouble comes from the US”. This bloke is actually talking in universities in Australia. And we allow it to happen? Brendon Nelson where are you? He’s saying stuff like this “All the trouble comes from the US, look at Oklahoma City, who’s blowing up the US? – their own people.” It wasn’t their own people who flew into the World, ahh, Trade Centre Towers. He also warned that Australia should not adopt strict terror laws from the US; he said they can pick you up, take you away for seven days, tell you they’re gonna to rape your wife and kids, he’s spruiking all this crap to universities to kids who are supposed to be at a place you’re supposed to learn. Now what the hell is he doing there?
(song)
2. Hey Mamdouh
I don’t wanna hear your tale of woe
Hey Mamdouh
Why did the Yankies let you go go go
Something doesn’t seem right
Very bad your English grammar
How come you’re not in the slammer
Hey my man
What were you doing in Afghanistan?
Were you up to something shady?
Were you doing what you shouldn’t do?
Are you an insider working for Al Qaeda?
Hey Mamdouh
Tell us where the truth is at
Hey Mandouh
But there’s bugger all chance of that
Will we ever know where the money came from?
Why don’t you shoot through and take that lawyer with you
Mamdouh, are you friend or foe
Hey Mamdouh
3. John Laws: Well we may well ask if he’s friend or foe, he’s certainly fit whatever he might be, running in the, uhhh, City to Surf, beats 40,000 people but he’s knocking on the door of Centrelink saying he needs a disability allowance. I tell you what, who’s responsible for inviting morons like this, this fellow, this Mamdouh Habib, to preach this rubbish I’ve been telling you about in universities. This is occurring in the University of Western Sydney and the Minister of Education should do something about it because it really is an absolute disgrace.
(song)
4. Hey Mamdouh
Tell us where the truth is at
Hey Mamdouh
But there’s bugger all chance of that
Will we ever know where the money came from?
Why don’t you shoot through and take that lawyer with you
Mamdouh, are you friend or foe?
Hey Mamdouh
(Later, after the 11:00am news)
5. John Laws: Steve are you there?
Yes, I am John. How are you mate?
I’m okay, what can I do for you?
This, uhh, Mamdouh Habib….
Yep.
… I don’t mind at all whether he gets this umm this disability payment.
Really?.
Well, providing that we can organise someone to go out and give him a disability.
(laughs) Yeah.
That’d be the first thing.
(laughs) Yeah, he’s uhhh there’s no doubt about it he’s uuhhh hot as a stove, isn’t he? I mean…
He did look, he did look quite fit the other night.
He sure did and to run in the City to Surf and uhh come in in the top 20% and then say you’re disabled and you need a disability pension is a joke. He ought to be laughed out of the country not out of the town.
APPENDIX II
TRANSCRIPT OF THE BROADCAST BY
STEVE PRICE at 4.07pm on 18 August 2006
2UE Steve Price
4.07pm Thursday, 18 August 2005
What sort of mugs are we if Mamdouh Habib gets a disability pension from the Federal Government. Now at the weekend I thought I heard someone tell me that Mamdouh Habib was running in the City to Surf race. It seemed so absurd I forgot about it; then, sure enough, today, he bobs up in the Telegraph in his black and white Addidas tracksuit and sure enough he ran a personal best at the weekend, Mamdouh, of 82 minutes and 25 seconds. Now, from memory that’s about 5 seconds faster than I did it in last year but then again I have a job and I can’t train all day for a foot race. Mamdouh, on the other hand, says he suffers clinical depression; he’s still suffering from being beaten and getting electrical shock treatment, he said, from US soldiers at Camp X-ray. He’s even suing the Telegraph and the Herald for calling him a suburban terrorist. Now maybe he has a case, I wouldn’t call him a terrorist, I’d call him a bludger. Now he’s a leech on Australia, a social security professional. This same bloke was already in Cent, on Centrelink payments when he disappeared overseas to find Islamic schools to send his children to. Now how could he afford a trip to Pakistan or wherever else he went, maybe from the proceeds of the sale of his cleaning business he once had. And his coffee shop. But if that’s the case, and he had all this income, was able to travel the world, and can now come back and spend his days training for the City to Surf, how did he get the pension in the first place? And can you imagine how many other Mamdouh Habibs there are out there, blokes capable of running 16km in 80 odd minutes but not able to go to work? Give me a break.
APPENDIX III
TRANSCRIPT OF THE BROADCAST BY
RAY HADLEY at 10.19am on 18 August 2006
2GB Ray Hadley Morning Show
10.19am Thursday, 18 August 2005
1. Ray Hadley: I had a number of emails over the past month uhhh about Mamdouh Habib and his battle with Centrelink so we went to Centrelink and they, of course, I think privacy reasons, couldn’t tell us any about (sic), anything about their dealings with Mamdouh Habib but then I had a number of emails this week from Monday to alerting me to the fact that while I was at the football on Sunday, old Mamdouh and his son were spotted on Channel 10 running in the City to Surf and all of them were asking the same question, is this man still trying to live off tax payers? Well the answer according to today’s Telegraph is yes. He’s still trying to get his hands on his disability pension. Uhhh now if you look at the picture in today’s Telegraph you can see he’s a long way to go convincing us he’s actually unfit to work. He leads a rather active lifestyle, Mamdouh Habib, he ran the City to Surf in 82 minutes and 25 seconds, despite his claims he suffers with, what he calls, clinical depression. Now he’s been locked, according to the Telegraph, in a running battle with Centrelink since he was flown back to Sydney from Cuba last January and incidently (sic) that trip, as you know, cost tax payers $225,000.00. On his return Mamdouh Habib demanded access to a disability support pension but was told that he’d have to wait to reimburse tax payers for the $11,000 in over payment. You see, what happened was Mamdouh quit his job as a small business owner in 1999 and began receiving a $470.00 a fortnight pension. He claimed then clinical depression. I’m getting depressed talking about it.
2. His family continued to receive the payment at the time he was in Pakistan looking for a better school for his children and during his subsequent imprisonment in Guantanamo Bay. And don’t forget that there was a very large payment he received from 60 Minutes for the interview that he did which told us and the reporters on 60 Minutes absolutely nothing. He’s also busy on the lecture circuit going to universities to speak on the topic of war and terrorism. Now I don’t think he’s going there in the traditional sense invited by the Vice Chancellor; I would imagine that the students union invites him to go along and he tells them that the USA are a pack of terrorist … the citizens of the USA are a pack of terrorists. Just yesterday, he told 100 students at the University of Western Sydney that the US, not him, was the real terrorist. He said and I’ll quote “All the trouble comes from the US. Look at Oklahoma City; who’s blowing up the US, their own people”. He neglected to mention September 11 of course. He also warned Australia not to follow strict US terror laws saying and I’ll quote Mamdouh Habib “They can pick you up, take you away for seven days, tell you they’re going to rape your family, your wife and your kids.” He’s a half wit. This is the same man who’s admitted he was in Pakistan prior to the September 11 New York attacks but has refused to answer claims he trained with Al Qaeda in Afghanistan until he’s brought before a court. Well, there’s a simple thing here. This grub doesn’t deserve a disability pension. He shouldn’t be speaking to university students on the war and terrorism until he’s come clean about his own activities.
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