Mohareb v Fairfax Media Publications Pty Ltd (No 2)

[2017] NSWSC 546

Supreme Court

New South Wales

Medium Neutral Citation:	Mohareb v Fairfax Media Publications Pty Ltd (No 2) [2017] NSWSC 546
Hearing dates:	28 April 2017
Decision date:	28 April 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Imputations 9(ii), (xii), 11(ii) and (xi) struck out
Catchwords:	DEFAMATION – pleadings – objections to imputations
Cases Cited:	Mohareb v Fairfax Media Publications Pty Limited [2017] NSWSC 288
Category:	Procedural and other rulings
Parties:	Nader Mohareb (plaintiff) Fairfax Media Publications Pty Limited (first plaintiff) Louise Hall (second defendant) State of New South Wales (third defendant)
Representation:	Counsel: R Rasmussen (plaintiff) M Richardson (first and second defendants) S Chrysanthou (third defendant)   Solicitors: Banki Haddock Fiora (first and second defendants) Crown Solicitor for NSW (third defendant)
File Number(s):	2017/35614

Judgment

1. HER HONOUR: In these proceedings, rulings were given in an earlier judgment as to objections brought forward by the defendants to the form of the pleading: see Mohareb v Fairfax Media Publications Pty Limited [2017] NSWSC 288. The plaintiff was directed to serve an amended statement of claim, which he did on 19 April 2017. The defendants object to a number of the imputations pleaded in the proposed amended pleading.

2. The first objection is to imputation 9(ii) (and imputation 11(ii), which is in the same terms). In the previous judgment I ruled on an objection to an imputation in the following terms: "The plaintiff unfairly pursues innocent people by suing them". The imputation now brought forward is: "The plaintiff pursues innocent people by suing them".

3. Mr Rasmussen, who appears for the plaintiff, explained that my earlier judgment was understood to be confined to disallowing the inclusion of the word “unfairly” on the grounds of imprecision and that, shorn of that word, he understood the imputation to be unobjectionable.

4. Certainly, in my reasons published on the earlier occasion at [6] to [7], my focus was on the inclusion of the word "unfairly" in the imputation. The difficulty is that, without that word, the imputation is still imprecise, in my view. As submitted by Mr Richardson on behalf of all defendants, to say someone pursues innocent people by suing them could mean various things but, whatever meaning is to be attributed to it, the new imputation "collides" (as Mr Richardson put it) with imputation 9(v), which is that “the plaintiff is a vexatious litigant in that he has frequently instituted or conducted proceedings that are without reasonable grounds”.

5. Mr Rasmussen submitted that there is an important difference in that proposed imputation 9(ii) focuses on the innocence of those against whom proceedings are brought, which he submitted elevates it to a meaning of greater seriousness than merely instituting proceedings without "reasonable" grounds. He submitted that an attribution of pursuing innocent people suggests, more seriously, the commencement of proceedings with no grounds whatsoever.

6. On a fair reading of the whole of the article, including a quote attributed to the Attorney-General at para 13 of the article (which does refer to the pursuit of innocent people unfairly), I do not think the distinction referred to by Mr Rasmussen is one that would be drawn by the reader. Read in context, each imputation says substantially the same thing, in my view. Imputations 9(ii) and 11(ii) will be struck out as being bad in form for imprecision and otherwise not differing in substance from imputations 9(v) and 11(v) respectively.

7. The second objection is to two new imputations pleaded in para 9(xii) of the proposed amended statement of claim (and para 11(xi), which is in the same terms), as follows:

1. There are reasonable grounds to suspect that the plaintiff's aggression and unpredictability has led him to commit acts of physical violence against members of the community; or

2. The plaintiff has committed and been convicted for acts of physical violence against others in the past.

8. Those imputations are drawn from para 18 of the article, which reproduces parts of a poster, as follows:

Headlined “Attention Island Residents” and accompanied by a photograph of Mr Mohareb, the poster said the Egyptian-born man is “a highly volatile individual, prone to manic outbursts… often abusive and threatening, particularly towards women and children” and “known to police”.

9. The existing pleading already includes imputations drawn from that paragraph of the matter complained of; in particular, the reference to the plaintiff’s being "known to police". Those imputations were the subject of argument on the last occasion and have resulted in the plaintiff being allowed to sue on an imputation that he is a criminal and an alternative imputation that he is reasonably suspected by police of being a criminal.

10. There is no imputation picking up the clear attribution that Mr Mohareb is a “highly volatile individual”, nor the clear imputation that he is “prone to manic outbursts”.

11. In my view, the new imputations are elevated beyond any meaning the article is reasonably capable of conveying. As to the first alternative, the "reasonable grounds to suspect" imputation, the words from which that imputation is evidently drawn make no reference to any other person's suspicion or state of mind regarding the plaintiff, in contrast with the phrase "known to police" (which, as already noted, already forms the basis of other imputations).

12. I accept that that passage suggests that the plaintiff is volatile and may have committed offences, but I think it is a stretch too far to conclude that it is capable of conveying the meaning that he has been convicted for acts of physical violence.

13. My ruling is that each of imputations 9(xii) and 11(xi) is incapable of being conveyed by the matter complained of.

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Decision last updated: 04 May 2017