Hossain v Ali (Ruling No 2)

[2023] VCC 514

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Defamation List

Case No. CI-22-00509

MOHAMMED HOSSAIN	Plaintiff
v
MD YOUSUF ALI	First Defendant
and
NUSRAT ISLAM	Second Defendant
and
KAZI MD MIZANUR RAHMAN	Third Defendant
and
MOHAMMAD HASSAN	Fourth Defendant
and
IMTIAZ CHOWDHURY	Fifth Defendant

---

JUDGE:	Her Honour Judge Clayton
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2023
DATE OF RULING:	5 April 2023
CASE MAY BE CITED AS:	Hossain v Ali and Ors (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2023] VCC 514

RULING
---

Subject:CIVIL PROCEDURE – DEFAMATION

Catchwords: Application to amend pleading – section 12A and s12B Defamation Act  concerns notice – whether proposed imputations “substantially the same” as concerns notice – test for “substantially the same”

Legislation Cited:      Defamation Act 2005 (Vic); Civil Procedure Act 2010 (Vic)

Cases Cited:Georges v Georges [2022] NSWDC 558; David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 667; John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; Palmer v McGowan [2021] FCA 430; Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201

Ruling:  Application allowed in part.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Castelan	Matrix Legal
For the First and Fourth Defendants	Mr A Anderson	Gadens

HER HONOUR:

1The plaintiff seeks leave to amend his Statement of Claim.  Amendment to the Statement of Claim is necessary because, amongst other things:

(a)   the current Statement of Claim repeatedly refers to “my client” instead of the plaintiff;

(b)   the numbering is not consecutive, making the pleading difficult to follow;

(c)   the plaintiff has discontinued his claim against some of the defendants;

(d)   the plaintiff pleads different imputations arising out of the same matter complained of.

2In his Proposed Amended Statement of Claim, the plaintiff seeks to plead re-publication by the fourth defendant of one of the matters complained of at paragraph 8(c).   This amendment is not pressed.

3There were originally five defendants in the proceeding.  On 8 February 2023, the proceeding was dismissed by consent between the plaintiff and fifth defendant.  On 15 March 2023 during the hearing of this application, the proceeding was dismissed by consent between the plaintiff and second and third defendants.  The proceeding continues between the plaintiff and first and fourth defendants.

4The defendants object to the imputations at paragraph 9(b),(c) and (d) of the proposed pleading on the basis that they were not particularised in the concerns notice.

5The question to be resolved is whether the proposed pleading contains imputations which are not substantially the same as those particularised in the concerns notice.

Imputations contained in the concerns notice

6The plaintiff sent concerns notices to the third and fourth defendants on 24 September 2021 and to the second defendant on 25 September 2021. 

7He sent the first defendant a concerns notice dated 14 December 2021.  On 21 December 2021, he sent a further concerns notice to the fourth defendant and withdrew his earlier concerns notice.

8The concerns notice sent to the first defendant particularises the following imputations the plaintiff says arise from an email sent to members of the Victorian Bangladeshi Community Foundation (“VBCF”) and Western Region Bangla School (“WRBS”) on 7 September 2021:

(a)   My client intentionally lied to members of the VBCF by email and mislead them;

(b)   My client has broken the law by engaging in workplace bullying;

(c)   My client is not a fit and proper person to be a member of the VBCF by engaging in gender discrimination;

(d)   My client is not a fit and proper person to be a member of the VBCF by engaging in misconduct;

(e)   My client is not a fit and proper person to be a member of the VBCF by assaulting parties;

(f)    My client should be shunned by members of the VBCF due to his conduct.

9The concerns notice sent to the fourth defendant on 24 September 2021 particularises the following imputations said to arise from comments published on 8 September 2021 on the Bangladeshi Broadsheet Facebook page:

(a)   My client lies;

(b)   My client defames;

(c)   My client’s behaviour and conduct is bullying, gender discriminative, assaultive, aggressive, non-co-operative also in breach of the VBCF constitution and threatening to the VBCF;

(d)   My client has destroyed the VBCF reputation;

(e)   Members of the VBCF should “not participate with” my client’s activities.

Imputations sought to be pleaded in the Proposed Amended Statement of Claim

10The plaintiff seeks to plead the VBCF email published by the first defendant, and republished by the fourth defendant (“the VBCF email”) carries the following imputations:

(a)   The plaintiff intentionally lied to members of the VBCF and misled them;

(b)   The plaintiff engaged in bullying while working on the Committee of the VBCF;

(c)   The plaintiff engaged in gender discrimination while working on the Committee of the VBCF;

(d)   The plaintiff assaulted people while working on the Committee of the VBCF.

Can a plaintiff plead an imputation not particularised in the concerns notice?

11Part 3 of the Defamation Act 2005 (“the Act”) sets out the process in which parties are required to engage prior to issuing proceedings.

12Section 12A sets out the content of a concerns notice and provides a process by which a publisher may seek further and better particulars if the concerns notice fails to adequately particularise the information required by subsection (1)(a).

13Relevantly for this application, s12A(1)(a)(iii) requires the aggrieved person to inform the publisher of the defamatory imputations the aggrieved person considers are or may be carried about the aggrieved person by the matter in question.

14Section 12B of the Act provides that an aggrieved person cannot commence a defamation proceeding unless the person has provided a concerns notice, the imputations to be relied on by the person in the proceeding were particularised in the concerns notice and the period for an offer of amends has elapsed.

15Subsection (2) clarifies that not all the imputations particularised in the concerns notice have to be pleaded, and does not prevent the aggrieved person relying on imputations that are “substantially the same” as those particularised in the concerns notice.

16The wording of s12B imposes on aggrieved persons a mandatory obligation to comply with the concerns notice process. Proceedings may be commenced in the absence of compliance with the requirement that the applicable period has elapsed, but only with the leave of the Court in limited circumstances.

17The Act provides no mechanism for avoiding the requirement for the aggrieved person to give a concerns notice and particularise the imputations to be relied on.

18Because of the mandatory nature of the wording in s12B, an aggrieved person cannot plead a new imputation, and could not amend an existing pleading to include a new imputation without first engaging with the concerns notice process.

Are the pleaded imputations substantially the same as those particularised in the concerns notice?

19In the case of Georges v Georges,[1] Abadee DCJ accepted that, in ascertaining whether the “sting” of an imputation is “substantially the same” as that in the concerns notice, an appropriate question is whether the same facts could be relied upon to prove the imputations.

[1] [2022] NSWDC 558

20He found it was “inherently likely” that, in the absence of a manifestly contrary intention, the interpretation of the statutory expression would be similar to the rule of thumb adopted in defamation law before the change in legislation.[2]

[2]        Ibid at paragraph [105]

21In David Syme & Co Ltd v Hore-Lacy,[3] the Court upheld the principle that neither party should be able to raise at trial a meaning “substantially different from, or no more injurious than” the meanings alleged by the plaintiff.  This would avoid the risk that, at trial, a party is taken by surprise, or has prepared the case on the wrong basis, or has not been given an opportunity to call evidence that might otherwise have been called.  A meaning that would require different evidence to be proved could not be raised at trial.  Implicitly, such a meaning would not be substantially the same as the pleaded meaning.

[3] [2000] 1 VR 667

22In John Fairfax Publications Pty Ltd v Hitchcock,[4] the Court considered that one test for determining whether imputations differed in substance was to ask what the defendant would need to prove to justify the imputation.  The Court also noted that test was only one way of determining the issue but this seems to open the door to a finding that imputations may still differ in substance, albeit that different evidence is not required to prove them.

[4] (2007) 70 NSWLR 484

23The weight of authority suggests that where different evidence is required to prove the different imputations, those imputations differ in substance.[5]

[5]See for example Palmer v McGowan [2021] FCA 430 at paragraph [20], and Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201 at paragraph [713]

24In this case, the plaintiff says the sting is identical and the imputations do not differ substantially.  The defendants say the imputations do differ in substance as difference evidence would have to be relied upon to prove a defence of justification.

25The following table sets out the imputations in the proposed amended pleading to which the defendants object, and the imputations in the concerns notice which the plaintiff says are substantially the same:

Concerns notice	Paragraph	Imputation	Objection
My client has broken the law by engaging in workplace bullying	9(b)	The plaintiff engaged in bullying while working on the Committee of the VBCF	First and fourth defendant
My client is not a fit and proper person to be a member of the VBCF by engaging in gender discrimination	9(c)	The plaintiff engaged in gender discrimination while working on the Committee of the VBCF.	First and fourth defendant
My client is not a fit and proper person to be a member of the VBCF by assaulting parties	9(d)	The plaintiff assaulted people while working on the Committee of the VBCF	First and fourth defendant

26All the imputations pleaded seek to confine the conduct impugned to conduct the plaintiff is alleged to have engaged in while working at the VBCF or in relation to the VBCF.

27This would change the evidence the defendants were required to call to establish a truth defence.  The defendants would be limited to evidence that demonstrated the plaintiff engaged in that conduct whilst working at the VBCF, or in relation to VBCF members.  The pleaded imputations confine the location and timing of conduct alleged, and restrict the defendants’ ability to rely on evidence of conduct that falls within the imputations contained in the concerns notice but that occurred outside the VBCF or not in relation to a VBCF member.  This would deprive the defendants of the ability to call evidence that, for example, the plaintiff bullied others.

28The allegation that the plaintiff broke the law by engaging in workplace bullying is different from, and would require different evidence to prove, than the allegation that the plaintiff engaged in bullying while working on the Committee of the VBCF.  This imputation confines the imputation even further, as it does not relate to the plaintiff’s work and membership of the VBCF at large, but confines it to the period while he was working on the Committee of the VBCF.  If the plaintiff engaged in bullying outside of his work on the Committee, the defendants would be deprived of a truth defence, if they were not also able to establish he engaged in bullying while working on the Committee.

29I am satisfied that the proposed imputations, whilst perhaps better reflecting the imputations conveyed by the publications, are not substantially the same as the imputations particularised in the concerns notice.

30An aggrieved person who attempts to bolster their case by exaggerating or inflaming the imputations conveyed in the concerns notice may find themselves stuck with those imputations  in a subsequently pleading.

31By restricting the imputations an aggrieved person can plead to substantially the same imputations particularised in the concerns notice, the legislature requires parties to genuinely engage in the amends process and to carefully consider each of the elements required to be particularised.  Defendants will decide whether to make an offer of amends in part after assessing the imputations particularised in the concerns notice and forming an opinion about whether the imputations can be made out, and if so, whether any defence applies.

32A defendant is entitled to form a view about the plaintiff’s prospects of success and consequently their own likelihood of establishing a defence by having regard to the content of the concerns notice.

33I am mindful that this puts high burden on plaintiffs to “get it right” in the concerns notice which, in turn has the potential to “front load” costs in defamation proceedings.  I am mindful of the Court’s duty to give effect to the overarching purpose of the Civil Procedure Act 2010 to facilitate the just, efficient, timely, cost-effective resolution of the real issues in dispute,[6] and the parties’ overarching obligation to ensure costs are reasonable and proportionate.[7]

[6]        Section 7

[7]        Section 24

34However, the changes to the Act make it clear that the legislature intended to remove from aggrieved persons the automatic right to adjudication of their claims by a court. Now an aggrieved person only has an entitlement to issue a proceeding where they can first satisfy the Court that the amends process has been completed and only has an entitlement to an adjudication by the Court where they can demonstrate they have sustained serious harm to reputation. Careful attention to particularisation of imputations in the concerns notice will ultimately reduce the costs both parties incur by ensuring matters which can settle, settle promptly and matters which come to court are properly pleaded.

35The plaintiff’s application for leave to amend his pleading is granted in part.  The first and fourth defendants’ objections to paragraph 9(b), (c) and (d) are upheld.

36I will hear the parties on the appropriate form of orders and in relation to costs.

- - -