Legal Research
Cases
Kermani v Seervai

Kermani v Seervai

Case [2021] NSWDC 449 26 August 2021

Rulings on Form and Capacity

Defamation Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: Kermani & Ors v Seervai [2021] NSWDC 449
Hearing dates: 26 August 2021
Date of orders: 26 August 2021
Decision date: 26 August 2021
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1)   Strike out the following paragraphs of the proposed amended statement of claim with leave to replead as provided for in Order 5 below:
(a)   The claim for republications made by the third plaintiff set out in paragraph 24;
(b)   The particulars of identification set out in paragraph 25.
(2) Pursuant to UCPR r 28.2, strike out the following imputations as not reasonably capable of being conveyed: imputations 30(a), 36(a), 36(c), 41(a), 41(c), 46(a), 46(b), 46(c), 46(d) and 50(a).
(3)   Strike out imputation 36(e) on the basis that this imputation is not reasonably capable of a defamatory meaning.
(4)   Dismiss the defendant’s form and capacity challenges to imputations 36(g) and (h), 41(g) and (h), 46(h) and (i), 50 (e) and (f).
(5)   Grant leave to the Plaintiffs to file and serve a further Amended Statement of Claim by 9 September 2021.
(6)   Matter stood over to the Defamation List for directions on 16 September 2021 at 9am.
(7)   Plaintiffs are to pay the defendant’s costs of the argument, including objection to previous drafts of the proposed Amended Statement of Claim as well as the costs thrown away by reason of the plaintiff being granted leave to amend.

Catchwords:
TORT – defamation – publication and identification – whether plaintiffs can sue for publications they themselves made where the defendant said they had “authority to circulate” the matter complained of - imputations – rulings on form and capacity – vulgar abuse and use of slang or invective: “motherfucker”; “arselicker”; “Terminator”; “queen bee”

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) rr 14.30, 28.2 and 42.1

Cases Cited:
Aldridge v Johnston [2020] SASCFC 31
Aleksandrov & Ors v Dimovski & Ors [2005] NSWDC 19
Al-Shennag v Statewide Roads Pty Ltd [2010] NSWSC 1412
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379; [1906] HCA 83
Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118
Bennette v Cohen (2005) 64 NSWLR 81
Berkoff v Burchill [1996] 4 All ER 1008
Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897
Brisciani v Piscioneri (No 4) [2016] ACTCA 32
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Defteros v Google LLC [2021] VSCA 167
Dudzinski v Kellow [1999] FCA 1264
Dunsec Pty Ltd & Ors v Nationwide News Pty Ltd [2000] NSWCA 155
Echo Publications Pty Ltd v Tucker & Anor; Echo Publications v Fast Buck$ & Anor [2007] NSWCA 73
Frawley v New South Wales [2006] NSWSC 248
Frew v John Fairfax & Sons Pty Ltd [2004] VSC 311
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Harding v Essey [2005] WASCA 30
Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946
Jones v Amalgamated Television Services Pty Ltd (1991)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kermani v Seervai

Details

AGLC: Kermani v Seervai [2021] NSWDC 449
Case: [2021] NSWDC 449
Decision Date: 26 August 2021

CaseChat Overview and Summary

The parties involved in the case of Kermani v Seervai were the plaintiffs, who were seeking damages for defamation, and the defendant, who was accused of making defamatory statements. The nature of the dispute centred on the publication and identification of allegedly defamatory material, with the plaintiffs claiming that the defendant had authority to circulate the matter complained of. The case was heard in the Federal Court of Australia. The court was required to decide several legal issues, including whether the plaintiffs could sue for publications they themselves made, the identification of the defamatory material, and the capacity in which the plaintiffs were suing. The court also needed to determine if certain imputations were reasonably capable of being conveyed and if they were defamatory.

The Federal Court of Australia found that the plaintiffs could not sue for publications they themselves made, and therefore, the claim for republications made by the third plaintiff and the particulars of identification were struck out with leave to replead. The court also ruled that certain imputations were not reasonably capable of being conveyed or were not reasonably capable of a defamatory meaning, and these imputations were struck out accordingly. The court dismissed the defendant’s form and capacity challenges to certain imputations, finding that they were reasonably capable of a defamatory meaning. The court granted the plaintiffs leave to file and serve a further amended statement of claim and stood over the matter for directions.

The final orders of the court included striking out specific paragraphs of the proposed amended statement of claim and particular imputations that were not reasonably capable of being conveyed or were not reasonably capable of a defamatory meaning. The court dismissed the defendant’s form and capacity challenges and granted the plaintiffs leave to file and serve a further amended statement of claim by a specified date. The matter was stood over for directions on a specified date and time. The plaintiffs were ordered to pay the defendant’s costs of the argument, including objection to previous drafts of the proposed amended statement of claim as well as the costs thrown away by reason of the plaintiff being granted leave to amend.

Orders

Orders of the court

Order:

(1) Strike out the following paragraphs of the proposed amended statement of claim with leave to replead as provided for in Order 5 below:

(a) The claim for republications made by the third plaintiff set out in paragraph 24;

(b) The particulars of identification set out in paragraph 25.

(2) Pursuant to UCPR r 28.2, strike out the following imputations as not reasonably capable of being conveyed: imputations 30(a), 36(a), 36(c), 41(a), 41(c), 46(a), 46(b), 46(c), 46(d) and 50(a).

(3) Strike out imputation 36(e) on the basis that this imputation is not reasonably capable of a defamatory meaning.

(4) Dismiss the defendant’s form and capacity challenges to imputations 36(g) and (h), 41(g) and (h), 46(h) and (i), 50 (e) and (f).

(5) Grant leave to the Plaintiffs to file and serve a further Amended Statement of Claim by 9 September 2021.

(6) Matter stood over to the Defamation List for directions on 16 September 2021 at 9am.

(7) Plaintiffs are to pay the defendant’s costs of the argument, including objection to previous drafts of the proposed Amended Statement of Claim as well as the costs thrown away by reason of the plaintiff being granted leave to amend.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Kermani v Seervai [2021] NSWDC 449

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 30 of 30 shown

Rock v Henderson
[2021] NSWCA 155 Para 79

…d issues such as the impact of social media on defences (at [52] – [54]). However, a more liberal view was taken by Brereton JA in Rock v Henderson [2021] NSWCA 155 at [45], where his Honour noted that “the celebrated cause of Balmain New Ferry Co Ltd v Robertson would never have got to trial, let alone to the Priv…
Defteros v Google LLC
[2021] VSCA 167 Para 1

…irfax & Sons Ltd (1985) 1 NSWLR 291 at [293]; Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253). Note, however, that in Defteros v Google LLC [2021] VSCA 167 at [245] – [257], a defence of triviality succeeded, inter alia, because the publication appeared to have been read, in large part, by the plaintiff’…
Tawhidi v Awad; Muslimovic v Tawhidi; Awad v Tawhidi
[2020] VSC 847 Para 48

…ory meaning. To the contrary, he who jests at the plaintiff’s expense does so at his peril: Berkoff v Burchill [1996] 4 All ER 1008; Tawhidi v Awad [2020] VSC 847 at [58] – [60].…
Massarani v Kriz
[2020] NSWCA 252 Para 78

…unresolved, as appellate courts have yet to consider the relevant principles for proportionality in relation to defamation actions ( Massarani v Kriz [2020] NSWCA 252). In 2005, in Aleksandrov & Ors v Dimovski & Ors [2005] NSWDC 19, I observed (at [45]) that, in terms of the clear lack of appellate acceptance of pr…
Aldridge v Johnston
[2020] SASCFC 31 Para 46

…ng defamatory when used to describe how a police officer was alleged to have felt after shooting a person during a siege). In Aldridge v Johnston [2020] SASCFC 31, the Court was divided as to whether a defamatory imputation could arise for a publication where the plaintiff was called a “greedy arsehole” and “greedy…
Stoltenberg v Bolton
[2020] NSWCA 45 Para 2

…from bookmarking, “likes”, “shares” and other forms of electronic endorsement in online publications are referred to in Stoltenberg v Bolton [2020] NSWCA 45 at [219] – [222] and [227] – [240]. However, none of the judgments discussed in decisions on these topics deal with further publications by a plaintiff.…
Minus v Harbour Radio Pty Ltd
[2017] NSWSC 191 Para 64

…Comparison to a famous (or infamous) person, such as President of the Russian Federation, Mr Vladimir Putin ( Minus v Harbour Radio Pty Ltd [2017] NSWSC 191) is a particularly fraught pleading task. McCallum J (as her Honour then was) helpfully explains why, at [27] – [30]:…
Brisciani v Piscioneri (No 4)
[2016] ACTCA 32 Para 44

…t [130] (“bully”); Tory v Megna [2007] NSWCA 13 (publications asserted to be mere “junk mail”); Brisciani v Piscioneri (No 4) [2016] ACTCA 32 (“Tool of the Week”).…
Bleyer v Google Inc
[2014] NSWSC 897 Para 78

…eel will be followed in Australia”. Sixteen years later, despite the landmark first instance judgment of Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897, this situation has not changed.…
Corby v Allen & Unwin Pty Ltd
[2014] NSWCA 227 Para 32

…The most helpful explanation of the principles for the determination of capacity of imputations is set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227. Some caution must be exercised where Federal Court judgments on capacity are relied upon, as different standards apply both at a summary level (the Federal Co…
Toben v Milne
[2014] NSWCA 200 Para 75

…bber”): Singleton v John Fairfax & Sons Ltd ( Supreme Court (NSW), Hunt J, 20 February 1980, unreported; cited with approval in Toben v Milne [2014] NSWCA 200 at [12]).…
Al-Shennag v Statewide Roads Pty Ltd
[2010] NSWSC 1412 Para 22

…The Law of Defamation in Canada) (Carswell) at [11-1] and, in Australia, Dudzinski v Kellow [1999] FCA 1264; Al-Shennag v Statewide Roads Pty Ltd [2010] NSWSC 1412; Frew v John Fairfax & Sons Pty Ltd [2004] VSC 311).…
Habib v Radio 2UE Sydney Pty Ltd
[2009] NSWCA 231 Para 3

…s opposed to being a matter going to damages only (as to the unfortunate consequences of confusion of this kind, see Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231), this should be clearly identified, with the relevant imputations pleaded, conformably with UCPR r 14.30.…
Trantum v McDowell
[2007] NSWCA 138 Para 18

…lthough publication made only to other defendants appears to be accepted as sufficient evidence of publication to a third party: Trantum v McDowell [2007] NSWCA 138.…
Echo Publications Pty Ltd v Tucker
[2007] NSWCA 73 Para 44

…tte v Cohen (2005) 64 NSWLR 81 (“thug” and “bully”); Echo Publications Pty Ltd v Tucker & Anor; Echo Publications v Fast Buck$ & Anor [2007] NSWCA 73 at [130] (“bully”); Tory v Megna [2007] NSWCA 13 (publications asserted to be mere “junk mail”); Brisciani v Piscioneri (No 4) [2016] ACTCA 32 (“Tool of the Week”).…
Tory v Megna
[2007] NSWCA 13 Para 44

…Echo Publications Pty Ltd v Tucker & Anor; Echo Publications v Fast Buck$ & Anor [2007] NSWCA 73 at [130] (“bully”); Tory v Megna [2007] NSWCA 13 (publications asserted to be mere “junk mail”); Brisciani v Piscioneri (No 4) [2016] ACTCA 32 (“Tool of the Week”).…
Zarth v Williamson
[2006] NSWCA 246 Para 18

…In Zarth v Williamson [2006] NSWCA 246, the defendant send a fax to the office of three solicitors, each of whom sued him for defamation. Although the issue is referred to only briefly (at [42] – [43]), as publication was conceded at the s 7A trial, the Court appeared to accept that publication to the other plainti…
Frawley v New South Wales
[2006] NSWSC 248 Para 2

…Cases where the defendant has accepted responsibility for the continued publication of the defamatory material: Frawley v New South Wales [2006] NSWSC 248 at [15]. The complications arising from bookmarking, “likes”, “shares” and other forms of electronic endorsement in online publications are referred to in Stolte…
Aleksandrov v Dimovski
[2005] NSWDC 19 Para 78

…principles for proportionality in relation to defamation actions ( Massarani v Kriz [2020] NSWCA 252). In 2005, in Aleksandrov & Ors v Dimovski & Ors [2005] NSWDC 19, I observed (at [45]) that, in terms of the clear lack of appellate acceptance of proportionality-style principles, it was “safe to say that there is…
Bennette v Cohen
[2005] NSWCA 341 Para 44

…developed in discussions about words in common parlance rather than swear words or insults: see Mundey v Askin [1982] 2 NSWLR 369 (“vermin”); Bennette v Cohen (2005) 64 NSWLR 81 (“thug” and “bully”); Echo Publications Pty Ltd v Tucker & Anor; Echo Publications v Fast Buck$ & Anor [2007] NSWCA 73 at [130] (“bully”); Tory v…
Wen Yue He v Chinese Newspapers Pty Ltd
[2005] NSWSC 253 Para 1

…ined of to his legal advisers or to a witness ( Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at [293]; Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253). Note, however, that in Defteros v Google LLC [2021] VSCA 167 at [245] – [257], a defence of triviality succeeded, inter alia, because the publicati…
Harding v Essey
[2005] WASCA 30 Para 21

…the original publisher where republication by a third party is the natural and probable consequence of the original publication (see Harding v Essey [2005] WASCA 30 ) , but it has never been argued that a plaintiff may republish in this fashion, which is how the concept of “compelled” publication came to arise in…
Frew v John Fairfax Publications Pty Ltd
[2004] VSC 311 Para 22

…and, in Australia, Dudzinski v Kellow [1999] FCA 1264; Al-Shennag v Statewide Roads Pty Ltd [2010] NSWSC 1412; Frew v John Fairfax & Sons Pty Ltd [2004] VSC 311).…
Bass v TCN Channel Nine Pty Ltd
[2003] NSWCA 118 Para 34

…ion. This complaint is most ocmmonly made where the language which is copied from the matter complained of is slang ( Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118 at [6]: “shonky”).…
Dunsec Pty Ltd v Nationwide News Pty Ltd
[2000] NSWCA 155 Para 32

…before trial) and also in jurisdictions where a jury may be called upon to determine the imputations ( Dunsec Pty Ltd & Ors v Nationwide News Pty Ltd [2000] NSWCA 155). The test is one of generosity, and not of parsimony.…
Dudzinski v Kellow
[1999] FCA 1264 Para 22

…New Zealand, United States), Second Edition (formerly The Law of Defamation in Canada) (Carswell) at [11-1] and, in Australia, Dudzinski v Kellow [1999] FCA 1264; Al-Shennag v Statewide Roads Pty Ltd [2010] NSWSC 1412; Frew v John Fairfax & Sons Pty Ltd [2004] VSC 311).…
McGuiness v J. T. Publishing Australia Pty Limited`
[1999] NSWSC 471 Para 46

…The mere presence of swear words does not mean that a defamatory imputation cannot be conveyed: McGuiness v J T Publishing Australia Pty Ltd [1999] NSWSC 471 (“fucking fantastic” capable of being defamatory when used to describe how a police officer was alleged to have felt after shooting a person during a siege).…
Egan v Willis
[1998] HCA 71 Para 44

…ssing these principles were developed in discussions about words in common parlance rather than swear words or insults: see Mundey v Askin [1982] 2 NSWLR 369 (“vermin”); Bennette v Cohen (2005) 64 NSWLR 81 (“thug” and “bully”); Echo Publications Pty Ltd v Tucker & Anor; Echo Publications v Fast Buck$ & Anor [2…
Balmain New Ferry Co Ltd v Robertson
[1906] HCA 83 Para 80

…Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379; [1906] HCA 83 was handed down in 1906, almost a century before Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946. During that century, much has changed (for example, there is no longer any right of appeal to the Privy Council), and views about th…
[2005] QB 946
[2005] QB 946 Para 80

…y Co Ltd v Robertson (1906) 4 CLR 379; [1906] HCA 83 was handed down in 1906, almost a century before Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946. During that century, much has changed (for example, there is no longer any right of appeal to the Privy Council), and views about the importance of…

Legislation cited in this decision · 1

Uniform Civil Procedure Rules 2005 (NSW)
14.30, 28.2, 42.1 3 mentions (from Para 74)

Medium Neutral Citation:	Kermani & Ors v Seervai [2021] NSWDC 449
Hearing dates:	26 August 2021
Date of orders:	26 August 2021
Decision date:	26 August 2021
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Strike out the following paragraphs of the proposed amended statement of claim with leave to replead as provided for in Order 5 below: (a) The claim for republications made by the third plaintiff set out in paragraph 24; (b) The particulars of identification set out in paragraph 25. (2) Pursuant to UCPR r 28.2, strike out the following imputations as not reasonably capable of being conveyed: imputations 30(a), 36(a), 36(c), 41(a), 41(c), 46(a), 46(b), 46(c), 46(d) and 50(a). (3) Strike out imputation 36(e) on the basis that this imputation is not reasonably capable of a defamatory meaning. (4) Dismiss the defendant’s form and capacity challenges to imputations 36(g) and (h), 41(g) and (h), 46(h) and (i), 50 (e) and (f). (5) Grant leave to the Plaintiffs to file and serve a further Amended Statement of Claim by 9 September 2021. (6) Matter stood over to the Defamation List for directions on 16 September 2021 at 9am. (7) Plaintiffs are to pay the defendant’s costs of the argument, including objection to previous drafts of the proposed Amended Statement of Claim as well as the costs thrown away by reason of the plaintiff being granted leave to amend.
Catchwords:	TORT – defamation – publication and identification – whether plaintiffs can sue for publications they themselves made where the defendant said they had “authority to circulate” the matter complained of - imputations – rulings on form and capacity – vulgar abuse and use of slang or invective: “motherfucker”; “arselicker”; “Terminator”; “queen bee”
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) rr 14.30, 28.2 and 42.1
Cases Cited:	Aldridge v Johnston [2020] SASCFC 31 Aleksandrov & Ors v Dimovski & Ors [2005] NSWDC 19 Al-Shennag v Statewide Roads Pty Ltd [2010] NSWSC 1412 Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379; [1906] HCA 83 Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118 Bennette v Cohen (2005) 64 NSWLR 81 Berkoff v Burchill [1996] 4 All ER 1008 Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897 Brisciani v Piscioneri (No 4) [2016] ACTCA 32 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Defteros v Google LLC [2021] VSCA 167 Dudzinski v Kellow [1999] FCA 1264 Dunsec Pty Ltd & Ors v Nationwide News Pty Ltd [2000] NSWCA 155 Echo Publications Pty Ltd v Tucker & Anor; Echo Publications v Fast Buck$ & Anor [2007] NSWCA 73 Frawley v New South Wales [2006] NSWSC 248 Frew v John Fairfax & Sons Pty Ltd [2004] VSC 311 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Harding v Essey [2005] WASCA 30 Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946 Jones v Amalgamated Television Services Pty Ltd (1991)…