Kermani v Seervai

[2021] NSWDC 449

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) 23 NSWLR 364

Massarani v Kriz [2020] NSWCA 252

McGuiness v J T Publishing Australia Pty Ltd [1999] NSWSC 471

Minus v Harbour Radio Pty Ltd [2017] NSWSC 191

Mitchel v Faber & Faber Limited [1998] EMLR 807

Mundey v Askin [1982] 2 NSWLR 369

Ralston v Fomich (1992) 66 BCLR (2d) 166

Rock v Henderson [2021] NSWCA 155

Singleton v John Fairfax & Sons Ltd (Supreme Court (NSW), Hunt J, 20 February 1980, unreported

Speight v Gosnay [1891] 60 LJQB 231

Stoltenberg v Bolton [2020] NSWCA 45

Tawhidi v Awad [2020] VSC 847

Toben v Milne [2014] NSWCA 200

Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291

Tory v Megna [2007] NSWCA 13

Trantum v McDowell [2007] NSWCA 138

Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253

Zarth v Williamson [2006] NSWCA 246

Texts Cited:

Professor R. E. Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition

Category:

Procedural rulings

Parties:

Plaintiffs:
First Plaintiff: Tirandaz Kermani
Second Plaintiff: Ruzbeh Mediomah Desai
Third Plaintiff: Farida Sheeriar Irani
Fourth Plaintiff: Sammy Jimm Marfatia
Fifth Plaintiff: Nauzer Bana

Defendant: Mehernosh Seervai

Representation:

Counsel:
Plaintiffs: Ms C Roberts
Defendant: Mr N Olson

Solicitors:
Plaintiffs: Prakash Lawyers
Defendant: Litigation Specialists

File Number(s):

2021/00113501

Judgment

The plaintiffs’ proceedings for defamation

1. These proceedings for defamation are brought by five plaintiffs who are members of a Zoroastrian community group in Sydney. This community group, of which the defendant is also a member, held an election of office-bearers at its Annual General Meeting on 7 March 2021.

2. The three matters complained of consist of two emails sent by the defendant to the five plaintiffs on 8 and 9 March 2021 as well as a YouTube video, which was posted for a short period from 10 March 2021. All three publications express the defendant’s pleasure at the plaintiffs being thrown out of office at the Annual General Meeting.

3. This deceptively simple set of events – two emails between the parties and a YouTube video seen by, at most, 142 persons before it was taken down, gives rise to issues of publication and defamatory meaning issues of more than usual complexity. Regrettably, this is an increasingly common phenomenon in defamation law in Australia, thanks to the increased risk of suit for informal publications made on email and social media – and, perhaps, thanks also to the allure of defamation proceedings as a new form of trial by combat, as statistics reflecting the rising number of defamation judgments appear to suggest.

4. I heard argument on issues of publication, identification and the form and capacity of challenged imputations on 26 August 2021. I set out below the reasons for the orders made that day.

The first and second publications

5. The first matter complained of is addressed to the second and third plaintiffs. It has a subject heading of “Bye Bye Talibans”. The somewhat ungrammatical text is as follows:

“To Nozer Bana (the Thor), Farida Irani (queen bee), MC Marfatia (Terminator) Ruzbeh desai (the A licker) and few others who tried to divide the community got their asses kicked at the AGM.

What goes around comes around.

Finally, the community woke up as it was not in our interest to allow the community to get annihilated just to satisfy the egos of bigots and false so-called scholars who misguided the AZA community to fulfil their vested interest.

I Manny never loose [sic]. I either win or learn. You clan [sic] expecting the truth from liars is like looking for a virgin in a maturity [sic] ward. Good riddance.

You have my authority to circulate this Email.”

6. The second matter complained of is the same email, sent to the third fourth and fifth plaintiffs by the third plaintiff, Farida Irani, who in turn received it from a person named Christine Seervai, the defendant’s wife (whose email account was used to send the second matter complained of). Farida Irani’s message to the remaining three plaintiffs is as follows:

“Can anyone assist in this please?

Warm regards

Farida

Begin forwarded message:

From: Christine seervai

Subject: Fwd: Bye bye talibans”

Dated: 9 March 2021 at 10:22:01 am AEDT

To Farida Irani[redacted],[redacted], [redacted]”

7. This is followed by the same text as that set out in the first matter complained of.

8. The third matter complained of is an audio and video recording on YouTube, part of which is sung by the defendant to the tune “Bye Bye Blackbird”. The text is as follows:

“My name is Mehemosh Seervai from Sydney Australia affectionately known as Manny. Our Association in Sydney known as the AZA was for the past 40 years a House of Fame. But in the last two years was turn [sic] in to a House of Shame. Finally, the Sydney Zoroastrian community woke up as it was not in our interest to allow the community to get annihilated just to satisfy the egos of bigots and so-called scholars who misguided the AZA community to fulfil their vested interest. So on Sunday the seventh of March two thousand and twenty-one, they were booted out and a new committee of highly esteemed, intellectual, and deserving individuals was formed. Good luck and looking forward to stand together towards a better tomorrow

“Hang up all your grazen wolves, here we go sing along Bye bye blackbirds. Nobody will wait for you as you try to divide us all, Bye bye blackbirds. You know that no one could try to understand me, but in the end was thrown out by the new committee. So, make my bed and light the light, I will be home, and I’ll give you a prize blackbird. Bye bye blackbirds- Bye bye blackbirds - Bye bye.””

9. The defendant’s strong accent makes the words difficult to understand. It seems more than likely that “Hang up all your grazen wolves” is in fact “Pack up all your cares and woes”. This is but one example of the many typographical errors (such as the failure to list the imputations in proper alphabetical order) in the statement of claim, which has additionally undergone several major redrafts, all of which have made analysis of the issues more than usually difficult.

Imputations

10. The first plaintiff pleads the following imputations for each of the first and second matters complained of:

1. That he acted contrary to the principles of the Zoroastrian religion.

2. That as a Trustee he caused division within the Zoroastrian community.

3. That as a Trustee, he did not act in the interests of the AZA and its members.

4. That as a Trustee he was a bigot.

5. That he was a liar.

6. That he could not be trusted.

7. That he had represented himself as a scholar when he was not.

11. The second plaintiff pleads the following imputations for each of the first and second matters complained of:

1. That he acted contrary to the principles of the Zoroastrian religion.

2. [There is no imputation (b).]

3. That he was and is an ‘A licker’, meaning arse licker, in the context that he seeks favours from people by currying favour with them.

4. That as a President he caused division within the Zoroastrian community.

5. That as a President that members of AZA defeated him at the annual general meeting.

6. That as a President he was a bigot.

7. That as a President, his ego was such that he acted contrary to the interests of AZA and its members.

8. That as a President, he acted in his own interest contrary to the interests of AZA and its members.

9. That he was a liar.

10. That he could not be trusted.

11. That he had represented himself as a scholar when he was not.

12. The third plaintiff pleads the following imputations arise from each of the first and second matters complained of:

1. That she acted contrary to the principles of the Zoroastrian religion.

2. [There is no imputation (b).]

3. That she was and is a “queen bee” in the context that she seeks to be the head of the community and that she assumes a form of regal status.

4. That as a Trustee she caused division within the Zoroastrian community.

5. [There is no imputation (e).]

6. That as a Trustee she was a bigot.

7. That as a Trustee, her ego was such that she acted contrary to the interests of AZA and its members.

8. That as a Trustee, she acted in her own interest, contrary to the interests of AZA and its members.

9. That she was a liar.

10. That she could not be trusted.

13. The fourth plaintiff pleads the following imputations for each of the first and second matters complained of:

1. That he acted contrary to the principles of the Zoroastrian religion.

2. That he was a “terrorist” in that he sought through his actions to induce fear in others.

3. That he was a “Terminator” in that he sought to cause suffering to others.

4. That he was was a ‘motherfucker’ in the sense of being a despicable or unpleasant person (the letters ‘MC’ in Hindi are a common contraction for ‘madharchod’ which means ‘mother fucker’).

5. That as a Trustee he caused division within the Zoroastrian community.

6. That as a Trustee, he did not act in the interests of the AZA and its members.

7. That as a Trustee he was a bigot.

8. That as a Trustee his ego was such that he acted contrary to the interests of AZA and its members.

9. That as a Trustee he acted in his own interest contrary to the interests of AZA and its members.

10. That he was a liar.

11. That he could not be trusted.

12. That he had represented himself as a scholar when he was not.

14. The fifth plaintiff pleads the following imputations were conveyed by each of the first and second matters complained of:

1. That he acted contrary to the principles of the Zoroastrian religion.

2. That as a Trustee he caused division within the Zoroastrian community.

3. That as a Trustee, he did not act in the interests of the AZA and its members.

4. That as a Trustee he was a bigot.

5. That as a Trustee his ego was such that he acted contrary to the interests of AZA and its members.

6. That as a Trustee he acted in his own interest contrary to the interests of AZA and its members.

7. That he was a liar.

8. That he could not be trusted.

9. That he had represented himself as a scholar when he was not.

15. The three imputations pleaded by each plaintiff as arising from the YouTube publication (set out in paragraphs 31, 37, 42, 47 and 51 of the proposed amended statement of claim), namely of being a bigot, contributing to a decline in the reputation of the community group and trying to divide the community, are not challenged. The sole issue for determination in relation to the YouTube publication is the adequacy of the pleading of identification for each of the plaintiffs.

Publication

16. The many problems with the pleading of publication include the following:

1. The first and second matters complained of were only published to the plaintiffs. Is the requirement for publication to a third party satisfied where publication is only to other plaintiffs? In addition, which publication of the second matter complained of are the plaintiffs suing on – the original sent by the defendant’s wife, or the copy of it forwarded to the other plaintiffs by the third plaintiff? In addition, although it is a trite point, the plaintiffs cannot sue the defendant for emails he sent to them personally (as opposed to each other).

2. There is what is asserted to be a fourth publication, namely one made by the third plaintiff to other members of the Zoroastrian community of one or both of the first two matters complained of. No imputations or precise details of publication are pleaded. In what circumstances may a plaintiff rely on a publication which he or she has made; is this one of those rare occasions; and how should such a claim be pleaded?

3. None of the plaintiffs is named in the YouTube publication. How should particulars of the identification of each of them be pleaded and particularised?

Publications “to” the plaintiffs only

17. Where a publication of a group libel is made only to members of that group, each of whom then sues the defendant, has there been publication to a third party?

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 plaintiffs was sufficient to amount to publication to a third party. There does not appear to be any settled law on this point, although 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.

19. However, when repleading the claim, it should be made clear that each of the plaintiffs is suing the defendant for the publications to the other plaintiffs and not to themselves and, additionally, whether they are suing on the email sent from the defendant’s wife’s account or the email forwarded by the third plaintiff which currently is attached (and which leads to further problems of the kind set out in more detail in paragraphs 20 – 26 below).

Publications “by” the plaintiff’s only: the claim for publications by the third plaintiff to others “within the Zoroastrian community”

20. As a general rule, a plaintiff may not rely upon publications he or she has made of the matter complained of. The situations where this problem arises are most commonly the following:

1. The plaintiff gives the matter complained 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 publication appeared to have been read, in large part, by the plaintiff’s own legal representatives, which would suggest that the court considered publication had still been made.

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 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.

3. A plaintiff claims to have made the publication in circumstances where he or she is “compelled” to do so: Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364. This category of cases exclusively involves a plaintiff publishing the libel because he or she has an obligation to do so. These are fresh publications, not republications, for the reasons explained by Hunt J in Jones.

21. There may be liability for republication (Speight v Gosnay [1891] 60 LJQB 231) for 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 Jones came to be formulated.

22. Ms Roberts submits, however, that the defendant in these proceedings has gone one step further than other plaintiffs, in that he ended each of the first and second publications with the words “You have my authority to circulate this Email”. Has the defendant, by these words, expressly or impliedly consented to the plaintiffs circulating it to their friends and associates, in circumstances where he is agreeing to lay himself open to liability for his words by reason of this invitation? This raises concepts of consent of a novel kind (for arguments about consent raised by defendants, see Professor R. E. Brown, Brown on Defamation (Canada, United Kingdom, Australia, 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).

23. The claim for publication the subject of challenge by the defendant is paragraph 24, which provides:

“24. The first and Second Publication were circulated within the Zoroastrian community.

Particulars

a. The First Publication was forwarded by the Third Defendant [sic: should be “third plaintiff”] to the vice president of the AZA;

b. The vice president of the AZA forwarded the First Publication to the 7 members of the management committee;

c. Further particulars will be provided following discovery.”

24. Leaving aside the obvious typographical error in paragraph 24(a), Mr Olson’s objections are:

1. If the publication by the plaintiff is based on a claim of permission (or, for that matter, compulsion), this should be pleaded.

2. If the claim is (additionally or alternatively) one of republication as a natural and probable consequence (Speight v Gosnay) this should be pleaded.

3. If the claim is that this additional publication is sued on as a publication as 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.

1. Whatever the nature of this purported publication, the plaintiffs must grasp the nettle as to whether it is a publication or a republication.

25. In its current form, this paragraph must be struck out, but the wider and more difficult question of when, and in what circumstances, a plaintiff can publish the defendant’s libel to third parties and then claim damages resulting from such publication can be dealt with at a later date.

26. For these reasons, paragraph 24 is struck out with leave to replead.

Identification and the third matter complained of

27. None of the plaintiffs have been identified by name in the third matter complained of. The video refers to persons who were “booted out” to be replaced by a “new committee”, which makes it a group libel. Each of the plaintiffs must establish that he or she falls within that group, by appropriate particulars of identification.

28. The paragraph the subject of challenge is as follows:

“25. The Third Publication circulated on the Internet and had at least 142 views.

Particulars

a. Annexure D is a screenshot of the YouTube video when available online showing that it had 142 views.

b. On 10 March 2021 at 7.53.33pm the Defendant emailed a link to the Third publication to the recipients including Goolcher Wadia, Roshan Mehta, Henry Robins, Adil Sarkari, Aurora, Madan Siligo and the Third Plaintiff. Annexed and marked E is a copy of the said email dated 10m March 2021.

c. Other persons who saw the Third Publication include Kaizad Panthaki, Phiroz Karai, and Farzan Contractor.

d. Further particulars will be provided after discovery.”

29. Mr Olson pointed to the following deficiencies:

1. Each of the plaintiffs must plead their identification separately. Just because one or more may be identifiable does not mean that all plaintiffs can jointly claim to be identified.

2. The persons who saw the YouTube video and identified one or more of the plaintiffs must set out the basis upon which they did so.

3. The current particulars of identification recite that the plaintiffs were in fact successful in the election and were re-elected (apart from the first plaintiff, who did not stand for re-election). How, in those circumstances, are they identifiable as the persons who were thrown out of office at this election? This must be explained.

30. Ms Roberts acknowledged that individual particulars of identification of this kind would be necessary for each of the plaintiffs and I accordingly struck out this paragraph with leave to replead.

Challenges to the form and capacity of the imputations

31. Objections were raised to the capacity of the following imputations:

1. Imputations 30(a), 36(a), 41(a), 46(a) and 50(a) were not reasonably capable of being conveyed, in that each of the matters complained of said nothing about the plaintiffs’ religious beliefs or practice.

2. Imputations 36(c), 41(c), 46(b), 46(c) and 46(d) were not reasonably capable of being conveyed because they sought to reflect meanings from mere vulgar abuse such as “motherfucker”. Alternatively, these imputations did not capture the true sting of the libel, as they merely repeated or restated the slang term in question.

3. Imputation 36(e) was incapable of being defamatory.

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 Court has a general policy of not hearing capacity arguments 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.

33. These principles can be readily applied to imputations such as 46(b), namely that the fourth plaintiff was a terrorist, but their application to the remaining challenged imputations where slang and invective are employed raises a number of difficult questions of law.

34. A common complaint raised in argument about the capacity of imputations is that mere repetition of the words in the matter complained of cannot encapsulate the sting of the conduct in question. 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”).

35. Where the slang word has a clearly identifiable meaning, such as “shonky”, there is no problem. However, terms of general opprobrium, such as “arse licker” and “motherfucker” can be applied to such a wide range of conduct that it is hard to see, in the absence of context, how they can demonstrate any specific act or omission by themselves. There are similar problems where the imputation refers to a notorious person (such as the “Terminator”) as an analogy. Both these pleading issues are discussed in more detail below.

Imputations 30(a), 36(a), 41(a), 46(a) and 50(a) – “[the Plaintiff] acted contrary to the principles of the Zoroastrian religion”

36. Ms Roberts submitted that, because the committee was a Zoroastrian committee, the complaints about the plaintiffs’ conduct must reflect upon their practice of the Zoroastrian religion. In addition, the reference to “Taliban” is asserted to have a religious flavour, presumably on the basis that acting like the Taliban meant that the plaintiffs were each acting contrary to the principles of the Zoroastrian religion.

37. While great caution should be exercised when denying a plaintiff the right to plead an imputation, each of the matters complained of as a whole says nothing at all about religious conduct (or lack thereof). The events described are the annual general meeting of a community organisation at which a democratic election for office-bearers was held, not a discussion about, or practice of, Zoroastrian (or Taliban) beliefs. The only deity referred to is the Viking “Thor”, and this reference is not pleaded as giving rise to any imputations, of the Nordic saga and/or Marvel comic kind, or otherwise.

38. The conduct attributed to the plaintiffs says nothing whatever about their religious beliefs or practices, but instead discusses their manner of carrying on their activities on the committee in question.

39. Any imputation pleaded to arise from the reference to the Taliban in the subject line of the email would need to focus on the sting of the conduct described in the whole of each of the matters complained of. The point of comparison with the Taliban is not framed in religious concepts. It might be pleaded, for example, as an insulting analogy for the despotic way the plaintiffs ran the community committee, but it cannot convey, in the natural and ordinary meaning, a reference to the practices of the Zoroastrian religion.

40. For these reasons, this imputation, in relation to each of the plaintiffs, is not reasonably capable of being conveyed and is struck out.

Capacity issues where terms of vulgar abuse are used

41. Five of the imputations are asserted not to arise in circumstances where opprobrious language has been used. These are:

1. Imputation 36(c) – [The second plaintiff] was and is an ‘A licker’, meaning arse licker, in the context that he seeks favours from people by currying favour with them.

2. Imputation 41(c) – [The third plaintiff] was and is a ‘queen bee’ in the context that she seeks to be the head of the community and that she assumes a form of regal status”

3. Imputation 46(b) – [The fourth plaintiff] was a ‘terrorist’ in that he sought through his actions to induce fear in others.

4. Imputation 46(c) – [The fourth plaintiff] was a ‘Terminator’ in that he sought to cause suffering to others.

5. Imputation 46(d) – [The fourth plaintiff] was a “motherfucker” in the sense of being a despicable or unpleasant person (the letters ‘MC’ in Hindi are a common contraction for ‘madharchod’ which means ‘mother fucker’).

42. The multiple repleadings of the statement of claim led to some confusion here, in that, after his initial submissions resulted in major amendments, Mr Olson had to address last-minute changes to the imputations set out in the revised version of the statement of claim served the night before the argument. His written submissions elide the contents of imputations 46(c) and 46(d), but my rulings take into account the manner in which the current pleading of the statement of claim is drafted.

43. Each of these imputations seeks to plead a meaning arising from terms which are abusive (“motherfucker”, “arse licker”, “Terminator”, “Taliban”, “queen bee”) and therefore require consideration of the context in which the terms are used in order to determine:

1. Whether any imputation is conveyed (as opposed to mere abuse) and, if so:

2. The act or condition conveyed.

44. Where defendant’s statements about a plaintiff are simply derogatory, the publication may fail to convey any imputation capable of injuring the plaintiff’s reputation because the words are mere vulgar abuse. However, appellate decisions discussing 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 [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”).

45. Over the past decade, online publication and social media have resulted in a vast increase in the use of insulting language and swear words. As with more old-fashioned terms of insult such as “bully”, questions of whether a publication is capable of being defamatory or merely vulgar abuse depend upon the context in which the assertedly vulgar term is used. The difficulty is that the use of swear words and insults on social media needs to be viewed in a realistic way from the context, and not manufactured into a dictionary-definition-based imputation as to, for example what a “motherfucker” or an “arsehole” is defined or translated to be.

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). 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 as fuck”, but the issue turned on whether “greedy” was defamatory, not on whether “fuck” rendered “greedy” as mere abuse.

47. Words can be deeply offensive in circumstances where no actual wrongdoing is identified, but where the result is to demean a person. The example most commonly cited is Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581, where the plaintiff brought proceedings after a film portrayed her as unwillingly having sex outside marriage with Rasputin. A more recent example is the use of the word “coon” to describe a black person (Mitchel v Faber & Faber Limited [1998] EMLR 807).

48. Nor does the fact that the insults and swear words are used to ridicule the plaintiff necessarily rob those words of defamatory 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].

49. Whether offensive or not, the question is whether the abusive language, in the context of the publication as a whole, conveys more than an insult and, if so, what the nature of that insult is. This is explained by Spencer J in Ralston v Fomich (1992) 66 BCLR (2d) 166 at 169 as follows:

“In my opinion, the words “son of a bitch” by themselves are not capable of any defamatory meaning…[T]hey are a translucent vessel waiting to be filled with colour by their immediate qualifier…[A]t most they insult. They are not likely to lower the object in the estimation of right-thinking people. More probably, they will demean the speaker, depending upon the company and the occasion.”

50. There are some potential mass media culture references relevant to imputations pleaded as arising, from the way in which each of the plaintiffs is described with a nickname. Is it possible that the description of Mr Bana as “Thor”, one of the heroes in the Marvel Cinematic Universe and the giving of hero-style nicknames to the others in the group is some kind of intentional parody of this group as wannabe Marvel comic characters? Is something similar intended from the reference to the “Terminator” for the fourth plaintiff? Fortunately, all I am called upon to determine is the capacity of the imputations in terms of the asserted failure to translate the resultant imputations into stings arising from the matters complained of, and that can be achieved by application of the usual principles for capacity to convey meaning.

51. A challenge is also made to imputation 36(e) on the basis of absence of defamatory meaning. Ruling on these questions of defamatory meaning needs to be approached with some caution. This is almost always a matter for trial. Only in a clearly obvious case would an imputation be struck out as not being defamatory.

52. Having noted these principles, I set out the reasons for my rulings.

Imputation 36(c): “A licker” (i.e. “arselicker”)

53. The term “A licker” (to use the form in which it appears in each of the matters complained of) is put in brackets after the second plaintiff’s name, so he is clearly being called an “A licker”. The imputation pleaded is that he seeks favours from people by currying favour with them. However, nothing in each of the matters complained of suggests any kind of currying of favour is going on.

54. The term “A licker” is a generalised term of insult (in that it could be used in a wide range of circumstances), and that is how it is used here. The word by itself is a “translucent vessel” (to quote Spencer J in Ralston v Fomich at [169]) waiting to be given meaning by the context. In the absence of any such context, the word is merely derogatory.

55. The other imputations pleaded capture the stings of the libel, but there is no additional sting conveyed by the use of the term “A licker”.

56. This imputation is not reasonably capable of being conveyed and is struck out.

Imputation 41(c): “Queen bee”

57. The ordinary reasonable reader will read such a word in the context of what else is said about the plaintiff, as opposed to assuming that a “queen bee” is, for example, a person with monarchical ambitions.

58. Leaving aside the rolled-up nature of this imputation, the problem is that neither of the kinds of conduct described find support elsewhere in each of the matters complained of. In particular, there is no inference of seeking some form of royal status.

59. The imputation currently pleaded is incapable of arising and is struck out.

Imputation 46(b): “terrorist”

60. As was noted in Tawhidi v Awad at [28] – [29], where imputations of being a terrorist were found not to be conveyed, mere reference to some form of terrorist organisation does not amount to an allegation of being a terrorist.

61. No activity of a political or religious nature is referred to in the matters complained of is referred to. The reference to “Bye bye Taliban” in the subject matter is, in context, more likely to be considered by the ordinary reasonable reader as a reference to the plaintiffs being vanquished at the meeting (which was generally agreed to be the fate of the Taliban until fairly recently).

62. There is no reference in the each of the matters complained of to the fourth plaintiff seeking by his actions to induce fear in others.

63. This imputation is not reasonably capable of being conveyed and is struck out.

Imputation 46(c): “Terminator”

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]:

“27 Mr Jedrzcjczyk sought to defend its inclusion on the basis that the matter complained of was published not long after the shooting down of Malaysian Airlines Flight MH17, which attracted a great deal of media focus in Australia including focus on the president of the Russian Federation, Mr Vladimir Putin. Mr Jedrzcjczyk also relied upon the fact that the Prime Minister of Australia at that time, Mr Tony Abbott, famously pledged to “shirt-front” the Russian leader, drawing a response from the Kremlin to the effect that Mr Abbott would fare poorly in a judo contest between the two men.

28 In my view, it is undesirable for an imputation to be framed by reference to the attributes of a political figure. The plaintiff’s resort to particular world events to lend meaning to the phrase “Putin-like” illustrates the difficulty. The various attributes of Mr Putin may be understood or perceived differently from listener to listener. Coincidentally, Australia’s perception of Mr Putin is back in the press this week following comments by Senator Pauline Hanson. Senator Hanson is attributed with having expressed her respect for the Russian leader, saying:

“He is very patriotic towards his country, the people love him, he is doing so well for the country. So many Australians here want that leadership here in Australia."

29 Our current leader, Mr Malcolm Turnbull, disagrees. He is attributed with having responded by condemning Senator Hanson’s remarks, saying Mr Putin's Russia was responsible for the "shocking international crime" of shooting down the MH17 airliner killing 298 people, including 38 Australian citizens, and that Mr Putin was not worthy of the Senator's admiration.

30 In that fraught political context, the prospect of having to determine interlocutory disputes or direct a jury as to how to determine issues concerning whether the brand of bullying allegedly attributed to Mr Minus by the matter complained of is to be likened to that to be attributed to Mr Putin is unattractive.”

65. The same problems exist in relation to the reference to the Terminator, about whom opinion is even more sharply divided. The Arnold Schwarzenegger character was the villain in the first film of the franchise, but thereafter was one of the heroes. What act or condition is conveyed by a mere comparison to the Terminator, without some contextual clarification of the conduct in question, as being conduct which “sought to cause suffering to others”? None of the Terminator films show Mr Schwarzenegger standing for election or running a committee (unlike his real life activities, which is a possible source for further confusion), so there is no context to give the reference to the Terminator as conveying a meaning of the kind pleaded here.

66. This imputation is not reasonably capable of being conveyed and is struck out.

Imputation 46(d): “motherfucker”

67. The plaintiffs’ latest attempt to plead an imputation of being a “motherfucker” is based on the letters “MC” which, in Hindi, mean “motherfucker”. I first note that, if so, it would need to be pleaded as a true innuendo, as opposed to being added on to the imputation to explain it. That means appropriate particularisation of knowledge of the true innuendo must also be pleaded.

68. The pleader has sought to encapsulate the sting of the “motherfucker” reference by asserting that this means “a despicable or unpleasant person”. Leaving aside the form problems of an alternative “or” being included in an imputation, the ordinary reasonable reader would be hard put to understand what is meant. A description of the act or condition involved, in terms of the conduct attributed to the fourth plaintiff in the matter complained of, is called for. Mere use of “motherfucker” cannot encapsulate the sting.

67. This imputation is not reasonably capable of being conveyed and is struck out.

Imputations 36(e) – “That as a President the members of the AZA defeated [the second plaintiff] at the annual general meeting”

70. While I am prepared to assume that “defeated” means that the members of the AZA did not vote for the second plaintiff at the meeting, the first problem this imputation suffers from is that it is incomprehensible.

71. Ms Roberts explained that the first plaintiff did not stand for election at all. However, that needs to be translated into an imputation with a defamatory sting. As Kourakis CJ explains in Aldridge v Johnston at [1] (in the context of whether it was defamatory to be called “greedy”), the imputation in question must be conduct which the ordinary reasonable reader would be conduct which would in business be reasonable:

“No reasonable person could think any less of a business person so eager for gain that he or she would take reasonably based legal proceedings which, if vindicated by a favourable judgment, would profit his or her business at the expense of his or her competitors.”

72. Although (for other reasons) this finding was not accepted by the majority, the principles enunciated by Kourakis CJ were accepted as correct. No reasonable person could think less of a person standing for office simply because they were not elected.

73. This imputation is struck out as not being defamatory.

Imputation 36(g) – “That as a president, [the second plaintiff’s] ego was such that he acted contrary to the interests of AZA and its members”; Imputation 36(h) – “That as a President, [the second plaintiff] acted in his own interest contrary to the interests of AZA and its members”

74. A challenge to the form of imputations 36(g) and 36(h) was made, on the basis that these imputations did not differ in substance: Uniform Civil Procedure Rules 2005 (NSW)(“UCPR”) r 14.30. Similar objections were made to imputations 41(g) and 41(h), 46(h) and 46(i), and 50(e) and 50(f).

75. The plaintiff was successful in opposing this challenge to form of the imputations. I briefly note that I rejected the challenges to the form of each of these sets of imputations, for the same reason in each case. A plaintiff is entitled to plead an imputation of an act (“the plaintiff held up a bank”) as well as a condition (“the plaintiff is a robber”): 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]).

Costs

76. Costs follow the event (UCPR r 42.1) and, as the defendant has been successful in all but one of the issues, in circumstances where the plaintiffs have had three unsuccessful attempts at pleading their case, it is appropriate that a costs order should be made in his favour.

77. Ms Roberts submitted that a preferable approach was for costs to be costs in the cause. For an interlocutory application such as the present, those costs can represent, for the ordinary working Australian, a substantial burden, in terms of the sheer size of the sums awarded, even in circumstances where, as is the case here, those costs are not payable until the litigation is completed or otherwise resolved.

78. Not only are these proceedings expensive, in terms of the assets of the parties, but it could also be said that these proceedings raise issues of complexity disproportionate to the subject matter. While I commend both counsel for their careful preparation of the issues raised in this argument, this aspect of these proceedings raises court and costs policy issues of some sensitivity, issues that are likely to remain 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 proportionality-style principles, it was “safe to say that there is no likelihood that Dow Jones & Company Incorporated v Jameel 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.

79. Part of the problem is that the court policy about what approach to take to small cases raises complex issues. In the course of refusing leave to appeal in Stoltenberg v Bolton (at [240]), Gleeson JA expressed concerns about granting leave to appeal where small sums (in that case, $10,000) were in issue. His Honour criticised the applicants for leave for raising a total of 53 complex arguments in relation to publication, identification, defamatory meaning and technology-related 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 Privy Council” if courts applied the principles of proportionality to proceedings simply because they involved small disputes or damages.

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 the importance of bringing a case about putting a penny in a ferry turnstile may, in an era of increasing reliance on legislation, be open to reconsideration. In the interim, however, costs orders for interlocutory proceedings must continue to be made, and I have accordingly awarded costs to the defendant.

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:

1. The claim for republications made by the third plaintiff set out in paragraph 24;

2. 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.

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Decision last updated: 03 September 2021