Hamid v Nationwide News Pty Ltd
[2017] NSWSC 1358
•15 September 2017
Supreme Court
New South Wales
Medium Neutral Citation: Hamid v Nationwide News Pty Ltd [2017] NSWSC 1358 Hearing dates: 15 September 2017 Decision date: 15 September 2017 Jurisdiction: Common Law Before: McCallum J Decision: Application for further interlocutory steps refused
Catchwords: CIVIL PROCEDURE – application for discovery and interrogatories in proceedings for defamation – defendant seeking to prove plaintiff’s reputation as “an associate of criminals” – unlikelihood that plaintiff would hold documents or have knowledge as to his own reputation Category: Procedural and other rulings Parties: Nael Hamid (plaintiff)
Nationwide News Pty Ltd (defendant)
Mark Morri (second defendant)
Naomi White (third defendant)
Ben McClellan (fourth defendant)
Laura Banks (fifth defendant)
James Taylor (sixth defendant)
Bruce McDougall (seventh defendant)Representation: Counsel:
Solicitors:
K Smark SC, S Jeppeson (plaintiff)
L Mullins (first to fifth defendants and seventh defendant)
Cambridge Law (plaintiff)
News Corp Australia (first to fifth defendants and seventh defendant)
File Number(s): 2017/00125516 Publication restriction: None
Judgment
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HER HONOUR: These are proceedings for defamation commenced by Mr Nael Hamid against Nationwide News Pty Ltd in respect of a series of articles published in print and online in The Daily Telegraph. It appears some of the articles were also published in The Canterbury Bankstown Express also owned by Nationwide News. The articles reported the fact that the plaintiff was sitting in a public place with Waleed "Wally" Ahmad when Mr Ahmad was fatally shot.
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The proceedings are before the Court today for the second listing. The proposed interlocutory steps which arise for the Court’s consideration today are proposed categories for discovery by the plaintiff and proposed interrogatories to be answered by the plaintiff.
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The plaintiff and the defendants have engaged in constructive discussions for which the Court expresses its gratitude and have brought forward a single issue the determination of which will resolve all outstanding objections by the plaintiff to those steps sought by the defendant.
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It is convenient to describe the matter in issue by reference to the proposed categories for discovery. The category objected to is, "all documents relating to the plaintiff being a known associate of criminals." It is necessary to understand the manner in which it is alleged such documents would relate to issues in the proceedings.
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The statement of claim pleads three imputations as follows:
The plaintiff is knowingly in the employ of an extremely violent active criminal;
The plaintiff is a knowing associate of an extremely violent active criminal;
The plaintiff has recently engaged in criminal conduct.
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There is a defence of justification but only in respect of imputation (b). The particulars of justification rest on an allegation that the plaintiff was sitting at a table with Mr Ahmad and socialising with him at Bankstown Central Shopping Centre at 11:45am on 29 April 2016.
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The remaining particulars relate to the conduct of Mr Ahmad. It may be accepted that, if those particulars are proved, it will be established that Mr Ahmad was a violent criminal.
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However, so far as it is sought to prove that the plaintiff was Mr Ahmad’s knowing associate, the defence appears to rest exclusively on the fact that the plaintiff was seated with Mr Ahmad at a time when Mr Ahmad was shot. In those circumstances, it is difficult to accept any justification for a category of discovery relating to the plaintiff being "a knowing associate of criminals". Even if that category were confined to the plaintiff's being a knowing associate of Mr Ahmad, when regard is had to the very limited and specific basis on which the defence of justification is sought to be maintained, it would, in my respectful opinion, amount to fishing.
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There is a second basis on which that category of documents is said to be relevant, namely, to support the particulars of mitigation of damages. The relevant particular is that the defendants intend to rely on the plaintiff's reputation as a knowing associate of criminals or suspects or people under investigation for criminal activity or persons of interest.
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The difficulty with reliance upon that particular as a basis for the category of discovery sought is that, of its nature, a reputation is something known to others and not to the holder of the reputation. What documents the plaintiff might have that might shed any light on his reputation with others as a knowing associate of criminals is obscure. Certainly, the disclosure of such documents could not be said to be necessary to resolve the real issues in the proceedings. As a category for discovery, I am persuaded by the submissions of Mr Smark SC that it should be rejected.
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The defendant has also proposed interrogatories, again directed primarily to ascertaining various aspects of the plaintiff's reputation. For substantially the same reasons, I would think it inappropriate to order the plaintiff to answer those interrogatories.
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For those reasons, the defendant's application for interlocutory steps beyond those already agreed between the parties is rejected.
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Decision last updated: 06 October 2017
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