Mohammed v Nationwide News Pty Ltd

[2016] NSWSC 733

Supreme Court

New South Wales

Medium Neutral Citation:	Mohammed v Nationwide News Pty Ltd [2016] NSWSC 733
Hearing dates:	3 June 2016
Date of orders:	03 June 2016
Decision date:	03 June 2016
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Rulings as to objections to form of pleadings
Catchwords:	DEFAMATION – imputations – objections as to form and capacity – no question of principle
Legislation Cited:	Defamation List Practice Note; SC CL4
Cases Cited:	Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Tobin v Mathieson [2015] NSWSC 1784
Category:	Procedural and other rulings
Parties:	Dr Ibrahim Abu Mohammed (Plaintiff) Nationwide News Pty Ltd (First Defendant) Matthew Benns (Second Defendant) Miles Godfrey (Third Defendant)
Representation:	Counsel: S Chrysanthou (Plaintiff) J Hmelnitsky SC, L Barnett (Defendants)   Solicitors: Birchgrove Legal (Plaintiff) Ashurst Australia (Defendants)
File Number(s):	2016/124237
Publication restriction:	None

Judgment

1. HER HONOUR: Dr Ibrahim Mohammed is the Grand Mufti of Australia. He has commenced these proceedings against the proprietor of The Daily Telegraph and two of its journalists arising out of a number of articles published late last year. The proceedings are before the Court today for the first listing in accordance with the Defamation List Practice Note SC CL4. The defendants have taken a number of objections to the pleadings. This judgment determines those objections.

2. Broadly speaking, the articles sued on relate to the Grand Mufti's response to the terror attacks in Paris which occurred shortly before the publication of the articles. The thrust of the articles is to condemn the Grand Mufti for his failure to condemn those attacks.

3. The first matter complained of was published on the front page of the printed edition of The Daily Telegraph and was illustrated in the fashion which appears to have become more common for that newspaper of having digitally altered images. The illustration invoked the idiom of the three wise monkeys. It depicted the Grand Mufti in three poses, in the first with his hands over his eyes, in the second with his hands over his ears and in the third with his hands over his mouth. The 2-inch headline at the bottom of the article reads "The Unwise Mufti". The caption to the three altered photographs reads "sees no problem, hears no concerns, speaks no English".

4. The second matter complained of is substantially the same article, with slightly different layout, as it appeared on the internet version of the newspaper. It is accepted that the Court's rulings in respect of the imputations for the first matter complained of would govern the second matter complained of.

5. The first objection is to imputation (a), "that Dr Mohammed is an apologist for the terrorist attacks on Paris". The objection is that the imputation is not reasonably capable of being conveyed. It was submitted that the term "apologist" means a person who seeks to defend some heinous act.

6. The defendants submitted that the burden of the criticism of the plaintiff in the matter complained of is the condemnation of his failure to condemn the terrorist attacks but that it would be a strained or forced meaning to say that the matter complained of attributed him in any way with seeking to defend those attacks.

7. In responding to that objection Ms Chrysanthou, who appears for the plaintiff, relied on the well-known authorities in this field and, in particular, the propositions collected in the recent judgment of the Court of Appeal in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [133]-[138] per McColl JA, Bathurst CJ and Gleeson JA agreeing at [1] and [191]. Her Honour said that a capacity determination is “an exercise in generosity not parsimony" and that the Court should exercise “great caution” in deciding to strike out an imputation on the grounds that it is not reasonably capable of arising from the matter complained of. As submitted by Ms Chrysanthou, the task at this stage is to determine “the outside boundaries of the possible range of meanings” rather than focusing on a specific single meaning conveyed by certain passages to the exclusion of the broader sense that the piece may convey as a whole.

8. In my view the matter complained of is reasonably capable of conveying imputation (a). In reaching that conclusion I have regard in particular to the passages relied upon by Ms Chrysanthou in which the plaintiff is attributed with attempting to "shift blame for the massacre" on "everything from racism to Islamophobia". In my view, taking the word "apologist" to mean what the defendants contend, the matter complained of is reasonably capable of conveying that meaning.

9. The second objection is to imputation (b), "that Dr Mohammed, a religious leader, turns a blind eye to terrorism". That imputation is plainly capable of arising, in my view. It is the sense conveyed by the editorial illustration to which I have referred, which in effect depicts Dr Mohammed as a person who deliberately ignores the horrors of the events referred to in the article.

10. The third objection is to imputation (e), "that Dr Mohammed, a religious leader, lacks insight in that he made a statement that was recklessly indifferent to the horror of the Paris massacre”.

11. The defendants object to that imputation on the grounds that it is embarrassing in that it is vague and meaningless. Mr Hmelnitsky, who appears with Ms Barnett for the defendants, submitted that the vice of the imputation is that it bundles up a number of different ideas. If it is deconstructed to the simple sense of the plaintiff having made a statement that expressed indifference to the horror of the Paris massacre, Mr Hmelnitsky submitted that it was not different in substance from imputations (a), (d) and (f), which convey, at various levels of seriousness, a similar notion.

12. My difficulty with the imputation is that, on a plain reading of its terms, I think it is confusing. Ms Chrysanthou put forward an argument to explain why the words following the phrase "in that" sustain the sting of lacking insight but that is a difficult proposition to unbundle and I think the imputation could potentially cause embarrassment at the trial as being potentially understood in different ways; at the very least, the meaning is unclear. That imputation will be struck out with leave to re-plead.

13. Finally, the defendants object to imputation (g), "that Dr Mohammed supports the notion of a violent Islamic holy war". Mr Hmelnitsky submitted that, with no disrespect to Ms Chrysanthou, the imputation is “a pleading ruse”. The portion of the matter complained of from which it is drawn is as follows:

“I was very disappointed for Australian Muslims yesterday, I thought Australians were let down by the Mufti yesterday,” Treasurer Scott Morrison said. And it’s not the first time. The Three years ago the Mufti led a delegation to meet leaders of Hamas in the Gaza strip and said he was pleased to be “in the land of jihad. But unlike the Grand Mufti, even the leaders Hamas denounced the Paris attacks.

14. Mr Hmelnitsky submitted that a pleading in that form would allow a case to go to the jury on the basis that the word "Jihad" means a violent Islamic holy war. Dr Mohammed would then be able to resist a truth defence on the basis that the word has some different, less sinister meaning to him (or perhaps as properly understood according to the doctrine of Islam).

15. The difficulty so described has some resonance with (but is distinguishable from) the issue addressed by me in the matter of Tobin v Mathieson [2015] NSWSC 1784 at [32]-[46]. The difficulty there, however, was that the plaintiff plainly intended different senses of the same expression for an advantage, which I considered to be an abuse of the process of the Court.

16. Here, Ms Chrysanthou submits that the word "Jihad", whether or not it carries this meaning properly understood according to the doctrine of Islam, is understood by the ordinary reasonable reader to mean a violent Islamic holy war.

17. After careful reflection I have reached the conclusion that the imputation here does not raise a difficulty of the kind considered in Tobin and, further, that it is reasonably capable of arising. I do not think it arises only from a strained meaning that could not be found by a reasonable jury, as submitted by the defendants.

18. I direct the parties to bring in short minutes of order to reflect these rulings.

19. *****