Haddad v Nationwide News Pty Ltd Cheikho v Nationwide News Pty Ltd (No 2)

[2014] NSWSC 775

Supreme Court

New South Wales

Medium Neutral Citation:	Haddad v Nationwide News Pty Ltd Cheikho v Nationwide News Pty Ltd (No 2) [2014] NSWSC 775
Hearing dates:	4 June 2014
Decision date:	06 June 2014
Before:	McCallum J
Decision:	The application for an order that the proceedings be tried at the same time is rejected.
Catchwords:	DEFAMATION - application by defendant to consolidate proceedings - whether the proceedings meet the threshold requirement of r 28.5 - whether the two proceedings should be tried at the same time - whether the plaintiffs would be unfairly prejudiced if the matter was heard at the same time - whether the proceedings should 'travel together' for the purpose of case management and interlocutory issues - whether the two proceedings should be heard consecutively by the same judge
Legislation Cited:	Uniform Civil Procedure Rules 28.5
Cases Cited:	Buckley v Herald and Weekly Times (2009) 24 VR 129 Cameron v McBain [1948] VLR 245 Haddad v Nationwide News Pty Limited; Cheikho v Nationwide News Pty Limited [2014] NSWSC 2027
Category:	Procedural and other rulings
Parties:	Wisam Haddad (1st plaintiff) Steve Dablis (2nd plaintiff) Jamal El-Haouli (3rd plaintiff) Mouhamed Sari (4th plaintiff) Nationwide News Pty Ltd (defendant) Hamza Cheikho (plaintiff) Nationwide News Pty Ltd (defendant)
Representation:	Counsel: D W Rayment (for plaintiff Haddad) L Goodchild (for plaintiff Cheikho) L Barnett (defendants) Solicitors: Auscorp Solicitors & Conveyancers (for plaintiff Haddad) Lighthouse Law Group Pty Ltd (for plaintiff Cheikho) Ashurst Australia Lawyers (defendants)
File Number(s):	2013/279941 2013/280743
Publication restriction:	None

Judgment

1. HER HONOUR: Sometime in the second half of 2012, there was released a video released on YouTube called "Innocence of Muslims". The video was met with outrage in the Muslim community, since it was perceived to ridicule the Prophet Muhammad. In Sydney, as in other parts of the world, Muslims gathered to protest. During the protest in Sydney, violence erupted. Unsurprisingly, those events attracted a great deal of media attention.

1. Two sets of defamation proceedings have been commenced in this Court arising out of articles published in The Daily Telegraph concerning the Sydney protest. On 16 September 2013, four men commenced proceedings in respect of two articles. The plaintiffs in those proceedings are Mr Wisam Haddad, Mr Steve Dabliz, Mr Jamal El'Haouli and Mr Mohammed Sari. On 17 September 2013, Mr Hamza Cheikho commenced proceedings in respect of four articles, two in common with those sued on in the Haddad proceedings. In each proceeding, the only defendant is Nationwide News Pty Limited, the proprietor of The Daily Telegraph.

1. Nationwide News has applied pursuant to rule 28.5 of the Uniform Civil Procedure Rules 2005 to have the two proceedings tried at the same time. This judgment determines that application, which is opposed by all five plaintiffs.

1. Rule 28.5 provides:

If several proceedings are pending in the court and it appears to the court:

(a) that they involve a common question, or

(b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or

(c) that for some other reason it is desirable to make an order under this rule,

the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them.

1. There is no doubt that the two proceedings raise some common questions. As already noted, two of the four matters complained of by Mr Cheikho are in common with the two matters complained of by the four plaintiffs in the Haddad proceedings. Indeed, each plaintiff relies upon the same imputations for those two matters complained of. That is probably not a coincidence. The parties were commonly represented in an argument as to imputations determined by me on 13 December 2013: see Haddad v Nationwide News Pty Limited; Cheikho v Nationwide News Pty Limited [2013] NSWSC 2027.

1. It can probably safely be concluded that the common imputations, if conveyed, are conveyed by the same parts of the matter complained of, such that it would be perverse if there were a different answer to the question whether the matter complained of conveyed each imputation of and concerning each individual plaintiff.

1. The first matter complained of common to both proceedings is an article published in The Daily Telegraph on 18 September 2012, the Tuesday after the protest to which I have referred. The article featured fifteen photographs of different men under the headline "Faces of Rage" in the familiar large font size used on the front page of The Daily Telegraph, together with subheadings, "Sydney Riot" and "Police Hunt Angry Mob". The article stated that each of the men depicted was photographed during "the protest that turned ugly in the heart of Sydney on Saturday". It said that police wanted to talk to those men. The article repeated a request by New South Wales Police Commissioner Andrew Scipione for anyone who knew the identity of any of the men depicted to come forward.

1. The second common matter complained of was a follow-up article published on 27 September 2012 under the heading "Angry Men Unmasked" with the banner across the top of the page identifying the subject matter of the article, "Muslim Unrest". The article featured the same fifteen photographs and claimed that officers attached to a strike force established in response to the protest had identified all fifteen of the men "whose faces of rage defined Sydney's Muslim protest". Three of the fifteen photographs were pixelated in the second article, and those men were identified as three who had been charged with serious offences. None of the plaintiffs was identified as a person who had been charged.

1. By way of example to illustrate the common question that will arise as to whether the imputations are conveyed and are defamatory of each plaintiff, as to the first matter complained of, each of the five plaintiffs relies on a single imputation that "as one of an angry mob he took part in a riot". Having regard to the composition of the articles explained above, it may be accepted that it would be perverse if a jury returned an answer that such an imputation was conveyed in respect of, for example, Mr Cheikho but not in respect of the four plaintiffs in the Haddad proceedings. That is a factor militating in favour of a single hearing.

1. However, as already noted, the proceedings commenced by Mr Cheikho sue on two additional matters complained of which are not concerned with any of the other four plaintiffs. There will, accordingly, in addition to the common questions, be some discrete questions raised only in the Cheikho proceedings.

1. The defences raised in each proceeding raise some common questions, principally by reason of the fact that defences of qualified privilege and honest opinion have been pleaded in each case. Both proceedings have a justification defence in common but, of course, that will not raise any common factual issue. The case against each plaintiff will have to be considered separately. It may, nonetheless, be accepted that the threshold requirement that enlivens the power under rule 28.5 is met, that is, that the two proceedings do raise common questions. To an extent, they may also be seen to arise out of the same series of "transactions" (the allegedly defamatory publications).

1. The defendants also relied on the third basis for exercising the power, namely, that it is desirable for other reasons that the proceedings be tried together. Ms Barnett, who appears for Nationwide News, submitted that to try the proceedings together would result in a saving of legal costs, not only for the defendant but for the plaintiffs. She submitted, and I accept, that there would be an undoubted saving of court time were the proceedings tried together. Accordingly, it may be accepted that the power is enlivened also on that alternative basis.

1. The critical question is whether the Court should exercise its discretion to make the order in the circumstances of this case. The principles applicable in determining that issue were not in dispute. It was accepted that, apart from considering whether common questions render it convenient or desirable that two actions be tried together, an important issue is whether the order is likely to expose any of the plaintiffs to a substantial risk of real prejudice.

1. In Cameron v McBain [1948] VLR 245, a decision of the Supreme Court of Victoria, it was noted that prior to the introduction of a specific rule (in similar terms to rule 28.5), there was no power to consolidate actions commenced by different plaintiffs. That was a case in which three passengers had all been seriously injured in the same motor vehicle collision. The Court noted that where there were different plaintiffs, the Court had no jurisdiction to bind without his consent one plaintiff in an action of tort by the decision of an issue in an action by a different plaintiff, even though it may be against the same defendant and arising out of the same transaction. The Court noted that the question whether the individual case was a suitable one for the exercise of its discretion to consolidate the proceedings was one which should be made by reference to the interests of the parties, which should not be prejudiced by the making of an order.

1. Cameron v McBain was cited with approval by the Court of Appeal of Victoria in Buckley v Herald and Weekly Times (2009) 24 VR 129. In that case, the Court stated that consolidating orders should very rarely be made and that, speaking generally, it is better to confine them to cases where several actions have been brought which might have been joined in one writ.

1. It may be accepted that, had the plaintiffs desired that course, Mr Cheikho could have been made a plaintiff in the Haddad proceedings, but that is not the end of the matter. The main issue addressed by the parties in submissions was the question of prejudice to the plaintiffs. Although the present application is to have the proceedings tried together, not consolidated, the principles considered above are of equal application in the circumstances of these proceedings, in my view.

1. On behalf of Mr Cheikho, perhaps the most compelling point of prejudice was the fact that the publications in The Daily Telegraph portray the group of Muslim men depicted in the fifteen photographs as an angry mob. Mr Cheikho has made the choice to commence proceedings in which he is the only plaintiff. To have his proceedings tried at the same time as the four plaintiffs in the Haddad proceedings, it was suggested, would contribute to the impression of portraying him as exactly that - a member of an angry mob.

1. On behalf of the four plaintiffs in the Haddad proceedings, probably the most compelling point of prejudice is their desire to distance themselves from Mr Cheikho, particularly noting that he sues on two additional matters and the content of those matters. The additional articles undoubtedly raise issues concerning more serious conduct than simply the participation of a number of young Muslim men in a protest.

1. One of the additional matters complained of by Mr Cheikho is an article by Janet Fife-Yeomans and Mark Morri headed "Rising Fear Aussie Fury to Cause a Culture Clash". That article specifically referred to Mr Cheikho and his alleged involvement in organising the protest (described in the matter complained of as a "riot"). The article said:

Some of the people involved in Saturday's riot have been linked by the police to the home grown Islamic terror cell that amassed weapons and talked of 'blowing up' the New South Wales Parliament and Lucas Heights Nuclear Reactor. Five men were convicted in 2009 and remain in gaol.

1. The second separate matter complained of sued on only by Mr Cheikho is an opinion piece by Janet Fife-Yeomans under the heading "Dark Heart of Hatred". The theme of that article is to pose the question whether something more sinister or dangerous rests beneath the riots than simply the notion of disenfranchised or restless young Muslim men. The journalist draws a tolerably clear link between the identity of the people who participated in the alleged riot and instances of terrorist activities. She again refers to Mr Cheikho's connection with the Lucas Heights criminal prosecutions, noting that Mr Cheikho had told police that two of the so-called "Terror Nine" are his relatives.

1. The opinion piece referred to the video which precipitated the riots, describing it as "puerile" and "14 minutes of your life you will never get back". She remarked that the real protest should be over how badly the video was made. Those remarks, viewed in the context of the balance of the article, plainly invite the reader's attention to the protesters' motives and the darker prospect of organised terrorism which so frightens people in Western society.

1. On the basis of those considerations Mr Rayment, who appears for the four plaintiffs in the Haddad proceedings, put a compelling submission as to the likely prejudice, if these proceedings are heard by a jury (as in all probability they will be), of hearing his four plaintiffs' claims at the same time as Mr Cheikho's claim. The prospect of a joint hearing with a jury brings the question of prejudice to the forefront.

1. The plaintiffs' submissions have persuaded me that there is a substantial risk of prejudice to each plaintiff if the proceedings are tried together. Accordingly, I am not persuaded that I should exercise my discretion to order that the proceedings be tried together.

1. A separate question is whether in the terms of the orders sought in the defendants' motion the proceedings might conveniently "travel together" for the purpose of case management and interlocutory issues. The plaintiffs each expressed some concerns in that respect, principally as to the risk of delay. however, it seems to me that it would be convenient and potentially a saving of costs if the proceedings were, at least for the time being, case managed together. If an occasion arises for their being dealt with separately, that can be dealt with when it arises, but I can see a real opportunity for savings of cost in interlocutory processes if they are managed together.

1. Finally, Ms Barnett, on behalf of the defendants, raised the question whether it would be convenient to have the proceedings, if not heard together, at least heard consecutively by the same trial judge. That, again, is a question which I think can be more conveniently determined in the future according to the course of events, which is unknown at present.

1. For those reasons, the application for an order that the proceedings be tried at the same time is rejected.

1. I think it is preferable not to make an order that the proceedings be listed and travel together. However, I indicate that I propose to continue, as I have to date, to case manage the proceedings together in the defamation list until such time as that may appear to be inconvenient or a source of prejudice to any party.

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