Mosslmani by his tutor Karout v DailyMail.com Australia Pty Ltd (ACN 166 912 465); Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828); Mosslmani by his tutor Karout v Australian Radio Network..

[2016] NSWDC 264

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Mosslmani by his tutor Karout v DailyMail.com Australia Pty Ltd (ACN 166 912 465); Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828); Mosslmani by his tutor Karout v Australian Radio Network Pty Ltd (ACN 065 986 987) [2016] NSWDC 264
Hearing dates:	12 October 2016
Date of orders:	25 October 2016
Decision date:	25 October 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	See [119]
Catchwords:	TORT – defamation – imputations – form and capacity – no issue of principle
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 14.30 and 28.2
Cases Cited:	Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 Berkoff v Burchill [1996] 4 All ER 1008 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n Charleston v News Group Newspapers Ltd [1995] 2 AC 65 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029 Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586 McDonald v The North Queensland Newspaper Co Ltd [1997] Qd R 62 New South Wales v Williams [2014] NSWCA 177 Scali v John Fairfax Group Pty Ltd (Supreme Court of NSW, Levine J, 15 July 1993) Singleton v Ffrench (1986) 5 NSWLR 425 Toben v Milne [2014] NSWCA 200 Younan v Nationwide News Pty Ltd [2013] NSWCA 335
Texts Cited:	J Dean, “Hatred, Ridicule or Contempt: A book of libel cases”, Pan Books, 1953
Category:	Procedural and other rulings
Parties:	Plaintiff: Ali Ziggi Mosslmani (also known as Ziggy) by his tutor Zeinab Karout Defendant in 2016/210991: DailyMail.com Australia Pty Ltd (ACN 166 912 465) Defendant in 2016/210996: Nationwide News Pty Ltd (ACN 008 438 828) Defendant in 2016/211033: Australian Radio Network Pty Ltd (ACN 065 986 987)
Representation:	Counsel: Plaintiff: Mr R Rasmussen Defendant in 2016/210991 and 2016/211033: Mrs L E Barnett Defendant in 2016/210996: Ms L Mullins (solicitor)   Solicitors: Plaintiff: Saab Law Group Defendant in 2016/210991: Mark O’Brien Legal Defendant in 2016/210996: News Limited Defendant in 2016/211033: Banki Haddock Fiora
File Number(s):	Mosslmani by his tutor Karout v DailyMail.com Australia Pty Ltd (ACN 166 912 465) (2016/210991);Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828) (2016/210996);Mosslmani by his tutor Karout v Australian Radio Network Pty Ltd (ACN 065 986 987) (2016/211033)
Publication restriction:	None

Judgment

1. The defendants in three separate defamation proceedings relating to publications made on 21 July 2015 challenge the form and capacity of the imputations pleaded to arise from each of the matters complained of.

2. I have attached the matters complained of published by the defendants as annexures to this judgment.

The DailyMail.com Australia Pty Ltd publication

3. The imputations pleaded (at paragraph 3 of the statement of claim) are as follows:

1. That the plaintiff, by reason of permitting himself to be photographed with a mullet hairstyle, has justifiably exposed himself to ridicule by the defendant.

2. That the plaintiff, by reason of permitting himself to be photographed with a mullet hairstyle, has justifiably exposed himself to ridicule by the public.

3. That the plaintiff, by reason of his mullet hairstyle, has justifiably exposed himself to ridicule by the defendant.

4. That the plaintiff, by reason of his mullet hairstyle, has justifiably exposed himself to ridicule by the public.

5. The plaintiff is a joke.

6. The plaintiff is a ridiculous person.

7. The plaintiff is a ridiculous person because he wears a controversial haircut.

4. The defendant’s objections, as noted in correspondence and oral submissions, were as follows:

1. Imputations (i) and (ii) and (vii) are not reasonably capable of being conveyed.

2. Imputations (i) – (iv), (v) and (vi) are ambiguous and do not differ in substance, and should be struck out.

The Nationwide News Pty Ltd publications (hereafter referred to as the Daily Telegraph publications)

5. The imputations pleaded (in paragraph 4 of the statement of claim) in relation to the 21 July 2015 website publication are as follows:

1. That the plaintiff, by reason of permitting himself to be photographed with a mullet hairstyle, has justifiably exposed himself to ridicule by the defendant.

2. That the plaintiff, by reason of permitting himself to be photographed with a mullet hairstyle, has justifiably exposed himself to ridicule by the public.

3. That the plaintiff, by reason of his mullet hairstyle, has justifiably exposed himself to ridicule by the defendant.

4. That the plaintiff, by reason of his mullet hairstyle, has justifiably exposed himself to ridicule by the public.

5. The plaintiff is a joke.

6. The plaintiff is a ridiculous person.

7. The plaintiff is hideously ugly.

8. The plaintiff is a ridiculous person because he wears a silly haircut.

6. The second matter complained of (paragraph 7 of the statement of claim), which is contained in the printed version of the Daily Telegraph, pleads the same imputations save for (viii), where the words “shameful haircut” appear:

1. That the plaintiff, by reason of permitting himself to be photographed with a mullet hairstyle, has justifiably exposed himself to ridicule by the defendant.

2. That the plaintiff, by reason of permitting himself to be photographed with a mullet hairstyle, has justifiably exposed himself to ridicule by the public.

3. That the plaintiff, by reason of his mullet hairstyle, has justifiably exposed himself to ridicule by the defendant.

4. That the plaintiff, by reason of his mullet hairstyle, has justifiably exposed himself to ridicule by the public.

5. The plaintiff is a joke.

6. The plaintiff is a ridiculous person.

7. The plaintiff is hideously ugly.

8. The plaintiff is a ridiculous person because he wears a shameful haircut.

7. The defendant’s objections in correspondence and oral submissions were:

1. Imputations (i), (ii), (v) and (vii) in each publication are not reasonably capable of being conveyed. (The defendant’s solicitor’s letter refers to imputation (v) and not to (vii), but this is not how the argument progressed before me). Although not stated in the correspondence, the submission as to the first matter complained of implied that no imputations were reasonably capable of being conveyed and, if accepted, would mean that no imputations (including (viii)) were capable of being conveyed.

2. Imputations (i) – (iv), (vi), (vii) and (viii) (“the ridicule imputations”) do not differ in substance.

3. Additionally, imputation 4(v) does not differ in substance from the ridicule imputations.

4. Imputations 4(ii) and (iv) are ambiguous in that it is unclear what is meant by “the public”: Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273. Furthermore, it is clear from the fact that the defendant has picked up and republished the social media posts that the defendant is in fact part of the public.

5. Imputation 4(vi) is ambiguous and rhetorical.

The Australian Radio Network Pty Ltd publications

8. In relation to the first matter complained of, which is a website publication on the imputations pleaded (at paragraph 3 of the statement of claim) are as follows:

1. That the plaintiff, by reason of permitting himself to be photographed with a mullet hairstyle, has justifiably exposed himself to ridicule by the defendant.

2. That the plaintiff, by reason of permitting himself to be photographed with a mullet hairstyle, has justifiably exposed himself to ridicule by the public.

3. That the plaintiff, by reason of his mullet hairstyle, has justifiably exposed himself to ridicule by the defendant.

4. That the plaintiff, by reason of his mullet hairstyle, has justifiably exposed himself to ridicule by the public.

5. The plaintiff is a joke.

6. That the plaintiff is hideously ugly.

7. The plaintiff is a ridiculous person.

8. The plaintiff is a ridiculous person because he wears a ridiculous haircut.

9. In relation to the second matter complained of, which is a website publication on the imputations pleaded (at paragraph 10 of the statement of claim) are as follows:

1. That the plaintiff, by reason of permitting himself to be photographed with a mullet hairstyle, has justifiably exposed himself to ridicule by the defendant.

2. That the plaintiff, by reason of permitting himself to be photographed with a mullet hairstyle, has justifiably exposed himself to ridicule by the public.

3. That the plaintiff, by reason of his mullet hairstyle, has justifiably exposed himself to ridicule by the defendant.

4. That the plaintiff, by reason of his mullet hairstyle, has justifiably exposed himself to ridicule by the public.

5. The plaintiff is a joke.

6. That the plaintiff is hideously ugly.

7. The plaintiff is a ridiculous person.

8. The plaintiff is a ridiculous person because he wears a ridiculous haircut.

10. In relation to the third matter complained of, which is a Facebook publication on KIIS 1065’s Facebook page, the imputations pleaded (at paragraph 12 of the statement of claim) are as follows:

1. That the plaintiff, by reason of permitting himself to be photographed with a mullet hairstyle, has justifiably exposed himself to ridicule by the defendant.

2. That the plaintiff, by reason of permitting himself to be photographed with a mullet hairstyle, has justifiably exposed himself to ridicule by the public.

3. That the plaintiff, by reason of his mullet hairstyle, has justifiably exposed himself to ridicule by the defendant.

4. That the plaintiff, by reason of his mullet hairstyle, has justifiably exposed himself to ridicule by the public.

5. The plaintiff is a joke.

6. The plaintiff is a ridiculous person.

7. The plaintiff is a ridiculous person because he wears a horrendous haircut.

11. The defendant’s objections, which apply equally to all three publications (those imputations being identical save for a different word in imputation (vii) in the third publication) are:

1. Imputations (i), (ii) and (vi) are not reasonably capable of being conveyed.

2. Imputations (i) – (iv) are ambiguous and do not differ in substance from each other, and imputations (vii) and (viii) do not differ in substance.

The relevant principles of law

12. As to the issue of capacity, the test to apply to the application brought by the defendants under r 28.2 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) is set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [134]-[138]. The rulings on capacity are as a separate trial under this rule.

13. Mr Rasmussen submits that the test set out in Corby v Allen & Unwin Pty Ltd is “a low bar”. Whether or not that is a correct statement of the law, the parties agree that imputations should not be struck out other than in the plainest and most obvious of cases: Younan v Nationwide News Pty Ltd [2013] NSWCA 335; New South Wales v Williams [2014] NSWCA 177; Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228; Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [41]-[45].

14. As to the challenges to form, the requirement is that the imputation must specify the act or condition allegedly attributed to the plaintiff by the matter complained of with sufficient clarity to enable the defendants to know the case they have to meet: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. In that regard, it is important to note the New South Wales Court of Appeal’s observations that, independently of issues of capacity, where the imputation does not differ in substance it should be struck out: Fairfax Media Publications Pty Ltd v Alex [2016] NSWCA 273.

15. The principle objections to the form of the imputations are:

1. Failure to differ in substance (UCPR r 14.30(3));

2. Ambiguity: Fairfax Media Publications v Alex[2014] NSWCA 273 per McColl JA at [19]-[24], referring to Singleton vFfrench(1986) 5 NSWLR 425.

16. There is sometimes an overlap between complaints of these kinds as to form. For example, in Toben v Milne [2014] NSWCA 200, where the trial judge’s rejection of an imputation on the basis that it did not differ in substance was replaced, on appeal, by a finding of ambiguity.

17. Where challenges are made to the form and/or capacity of imputations, the court invariably rules on each imputation separately. That is very difficult here, because the imputations are so close in meaning that a finding that an imputation is not reasonably capable of being conveyed and/or does not differ in substance from several others, where one or more other imputations has been struck out, may depend upon how other imputations are repleaded.

18. Another problem is the repetitious nature of the imputations, which are set out in groups ((i) and (ii), (iii) and (iv), followed by two “ridicule” imputations and an alternative but similar imputation that the plaintiff “is a joke” and is “hideously ugly”). The high degree of similarity of the contents of the imputations is exacerbated by the number of imputations pleaded. This was further added to, during the argument, by generalised submissions as to whether a particular imputation arose. As set out below, I have been careful to look at each publication separately, as certain of the imputations arise in some publications but not others.

Imputations of ridicule

19. The imputations pleaded in these proceedings follow patterns established by what are sometimes called “ridicule” cases (the traditional description of defamation being a publication which causes “hatred, ridicule or contempt”: J Dean, “Hatred, Ridicule or Contempt: A book of libel cases”, Pan Books, 1953). The imputations pleaded have borrowed the words used to convey imputation in the following cases:

1. “Permitted” the taking of photographs: Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 (where the plaintiff gave an interview and one of the photographs appeared to show his penis).

2. “Justifiable” exposure to ridicule and an imputation that “the plaintiff is a joke”: Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029 at [13]-[25]; Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 (where the plaintiff’s face was photoshopped on a naked model and derisive comments made about her political stance).

3. “Hideously ugly”: Berkoff v Burchill [1996] 4 All ER 1008 (where the plaintiff was compared to Frankenstein).

20. There are no special rules about the form of pleading of “ridicule” imputations. However, perhaps because they are often to be found in publications of an informal and humorous nature, they can be more difficult to distil and draft than imputations about a person’s actions or personal qualities. This may account for the pleader’s recycling of the successful imputations in the cases listed in paragraph 19 above.

21. However, what amounts to a good imputation in one case does not mean that it is a good imputation in another. A good example can be seen from imputations (i) and (ii), that the plaintiff “permitted” such a photograph to be taken. An imputation concerning giving permission to be photographed was held to be reasonably capable of arising in Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 (at 449). However, the facts in that case were that the photograph asserted to have been taken with his consent appeared to show his penis. The sting of the libel lay in the nakedness shown in the photograph being published to the world, and this was why permitting it was reasonably capable of amounting to an imputation with a defamatory meaning.

22. Similarly, in Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586, a photograph of a partially naked man tied with bondage equipment to a piano in a public park during the Gay and Lesbian Mardi Gras was held to give rise to a defamatory meaning, again in relation to his permitting the taking of a photograph. There would have been many people who permitted their photograph to be taken during this function; it was the plaintiff’s nakedness and ludicrous position in a public place that rendered his granting of permission to be capable of giving rise to a defamatory meaning.

23. In both those cases, the sting of the libel lay in being photographed in circumstances outside the normal, namely with disregard to the social taboos of nakedness and/or lack of dignity. In fact, even if the person photographed partially naked did not intentionally disrobe and/or permit the taking of the photograph, being photographed partially nude may be sufficient to be defamatory even where there was clearly no permission given. This was the case in McDonald v The North Queensland Newspaper Co Ltd [1997] Qd R 62, where a photograph of a footballer being tackled revealed his penis. There was no suggestion that he had permitted the photograph to be taken, as the sting of the libel was that his penis was showing.

24. However, the plaintiff in these photographs was not photographed naked or looking in any way different to his normal appearance; the subject of comment is the way he has styled his hair (namely a hairstyle known as a “mullet”).The differences between decisions such as Ettingshausen v Australian Consolidated Press Ltd and the matters complained of in these proceedings are considerable, and demonstrate the dangers of copying the words of imputations in one “ridicule” publication and asserting that they also arise in other “ridicule” publications.

25. The same is the case with “hideous” ugliness and “justifiable” ridicule and an imputation that the plaintiff “is a joke”. Mr Berkoff pleaded he was “hideously ugly” because he was compared to Frankenstein. The fact that these imputations have succeeded in other publications where comments have been made about a person’s appearance does not mean that they are necessarily the correct imputations to plead in relation to the publications over which the plaintiff has brought these proceedings.

26. While I propose to consider each publication separately, a preliminary issue with which I propose to deal is that the photograph originally published of the plaintiff is capable by itself (independently of the words in each of the matters complained of) of giving rise to imputations (i) and (ii) of each of the publications in which it appears.

27. There is also the question of whether, in its original or cropped form (with the other dancers and/or the photographer’s studio logo omitted) and/or when published with other photographs and/or as published in the photoshopped pictures, it is capable of conveying these imputations independently of the words.

The photograph of the plaintiff dancing and imputations (i) and (ii)

28. Mr Rasmussen submits that the ordinary reader would assume, from the pose of the plaintiff and his apparent smile, that he is deliberately posing for the camera and thus “permitting” himself to be photographed. He also relies on the inclusion in the photograph of a logo “jnoodles photography/Facebook”. These factors, he submits, convey that the plaintiff is posing for the photograph and accordingly imputations (i) and (ii) in relation to each of the matters complained of is reasonably capable of being conveyed on the photograph alone.

29. I do not accept this submission. First, there is nothing in the photograph to demonstrate that the plaintiff is posing for a photograph. The plaintiff and his partner are shown in profile on a crowded dance floor, dancing; the person they are next to has her back to the camera and others on the dance floor are partially cut off. The plaintiff is not smiling or looking at the camera as Mr Rasmussen claims. The informal composition of the photograph does not in any way suggest some formal posing by either the plaintiff or the young lady he is dancing with.

28. Second, the fact that the photograph was taken by a professional photographer could be a factor indicating that the plaintiff was permitting his photograph but, in the absence of words to this effect in the matter complained of, this alone would be insufficient. Ms Barnett submitted that readers would be aware that photographers at social functions such as weddings or birthday parties may take portrait photographs but would also take photographs of general scenes, such as dancers on the dance floor (as is the case here) without approaching all the persons in the photograph for permission to do so.

29. Third, the photographs are not all the same. The photograph in the Daily Telegraph (Exhibit B) is cropped; it does not show the photographer’s logo or the other dancers. I was not addressed as to these differences and whether either of them meant that the plaintiff appeared to be posing for the photograph. This was one of several submissions which were made in relation to all the publications when in fact the photograph with the logo was not produced in all or even most of them.

30. The photograph in the first matter complained of in The Edge (2016/211033) is not cropped, but the logo of the photographer appears to have been deleted. Again, no submissions were made about this difference.

31. Nor was any submission made to the photoshopped pictures of the plaintiff used to create memes and Internet photographs. In the event submissions had been made, I would make the same findings.

32. Even if the plaintiff did appear to be posing for the photograph of his face which was repeated so often over the Internet, just what is it that the plaintiff “permitted” the photographer to do by posing for his picture to be taken? Permission to publish was not an issue in Ettingshausen v Australian Consolidated Press Ltd because the matter complained of made clear that the photographer was a person who had been allowed into the team’s locker room for the purpose of preparation of a book about football celebrities. Whether or not such “permission” was granted by the plaintiff in these proceedings to do more than take the photograph is not capable of being determined by the photograph alone.

33. The plaintiff does appear to be posing for other photographs in the Daily Telegraph, with the accreditation being “from Facebook”. The plaintiff’s ponytail/mullet hairstyle cannot be seen in these photographs as they are taken of his face; all that can be seen is his shaved head. I was not addressed on what to make of this.

34. I have been careful, in relation to each of the publications, not to have any regard to the contents of photographs in other publications. However, in relation to Mr Rasmussen’s submissions that any or all of these photographs in some way support the imputation that the plaintiff permitted the photograph (independently of the text of the matter complained of), this is not a submission that I accept.

35. Having noted these findings in relation to the original and cropped photographs (which I set out here, rather than repeat in relation to each of imputations (i) and (ii) in the matters complained of where it appears), I now consider each of the three claims brought by the plaintiff.

The proceedings against DailyMail.com: 2016/210991

38. There is only one claim made against the DailyMail.com. The imputations are similar to those pleaded in the other two claims, but there is no pleaded imputation that the plaintiff is “hideously ugly”.

Imputations 3(i) and 3(ii)

39. The opening headline (see Annexure A) states “Photo of teenager at a party with ridiculous haircut is huge hit on line” and describes it in paragraph 3 as “a single photograph snapped at an 18th birthday party” which went viral “thanks to one of the subjects’ unusual haircuts”. The photographer told the DailyMail.com that “When I was walking around taking photos I didn’t really think anything of it” (paragraph 9). He posted it onto social media and told the “birthday boys” holding the party he was going out to dinner and, when he looked again an hour later, saw that the photograph had received 300 ‘likes’ (paragraph 10).

40. The photographer is then quoted as saying that he was a full-time student but that photography was “more of a hobby than a career” which was “on the side” and “just a bit of pocket money”. His photography studio contact details are included in the photograph.

41. Whether the photographer was paid to take photographs or not, there is nothing in the language of the matter complained of to give rise to an imputation that the plaintiff “permitted” himself to be photographed in circumstances where he accordingly “justifiably” exposed himself to ridicule. As noted above, I am not prepared to draw inferences from the photograph alone that the plaintiff permitted himself to be photographed.

42. Imputations 3(i) and 3(ii) are premised upon the plaintiff having deliberately exposed himself to ridicule by posing for the photograph. Neither the pictures in the matter complained of nor the text are capable of giving rise to such a claim. The words of the matter complained of are in fact to the contrary.

43. Ms Barnett also pointed out that the addition of the words “by the defendant” and “by the public” to each of these imputations was similarly misconceived, because there is nothing in the matter complained of capable of conveying that the plaintiff permitted the photograph to be taken in public circumstances. I also accept her submission that imputations 3(i) and 3(ii) do not differ in substance, in that the matter complained of makes it clear that the publisher (which is reporting the public comments) is effectively part of the public.

44. Independently of these defects, these imputations are not reasonably capable of being conveyed and will be struck out.

The DailyMail.com imputations 3(iii) and 3(iv)

45. These imputations are not the subject of a capacity argument. The objection is to their form. Ms Barnett referred to her instructing solicitor’s letter of 5 October 2016 and extended those submissions to argue that these imputations are ambiguous because of:

1. The use of the word “justifiably” (but cf Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 at [48] and Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029 at [31]);

2. The phrase “exposed himself to ridicule”, which is asserted to be a mere rhetorical flourish (again, see the authorities referred to in (a) above);

3. The phrases “by the public” and “by the defendant”, which is a distinction without a difference; these imputations do not differ from one another.

4. Imputations 3(vi) and 3(vii) similarly do not differ in substance.

46. As to imputations 3(iii) and 3(iv), I consider the phrases “by the public” and “by the defendant” not to be capable of being conveyed in the absence of there being something in the matter complained of to the effect that the plaintiff was seeking to attract the attention of the defendant. I also consider that these imputations do not differ in substance.

47. These imputations come much closer to the sting of the libel. The plaintiff is entitled to plead imputations of the same kind as those pleaded by Senator Hanson-Young, and to plead one as an act and the other as a condition. In their present form, however, these imputations are struck out with leave to replead.

48. Imputations 3(vi) and 3(vii) are the condition to go with the act the pleader seeks to describe in 3(iii) and 3(iv). These imputations are almost identical. The main difference between them is that imputation 3(vi) is unhelpfully vaguer than 3(vii). I propose to strike these out for the same reasons as 3(v). As already indicated, I consider the phrases “by the public” and “by the defendant” not to be capable of being conveyed in the absence of there being something in the matter complained of to the effect that the plaintiff was seeking to attract the attention of the defendant.

49. Imputation 3(vii) comes much closer to the sting of the libel. The plaintiff is entitled to plead imputations of the same kind as those pleaded by Senator Hanson-Young, and to plead one as an act and the other as a condition. Imputation 3(vii) is therefore reasonably capable of being conveyed and will go to the jury.

The DailyMail.com imputation 3(v)

50. The imputation “the plaintiff is a joke” is submitted not to differ in substance from imputations 3(iii) and 3(iv), although I note, from Mr Svilan’s letter of 5 October 2016, that no objection was taken to this imputation. Ms Barnett has dealt with this by relying upon the submissions made as to this imputation by Ms Mullins, the solicitor in the proceedings the plaintiff brings against Nationwide News Pty Ltd.

51. An imputation that “the plaintiff is a joke” was allowed to go to the jury, but by reason of the “joke” cartoon of the plaintiff (whose head was superimposed on a scantily clad body), and in circumstances where the plaintiff, a member of parliament, had been reduced to a joke by the cartoon.

52. As I have set out below, the plaintiff is entitled to plead an imputation of condition in relation to his hairstyle. An imputation that the plaintiff is a joke would not differ in substance from either imputations 3(vi) or 3(vii). It is struck out on that basis.

The DailyMail.com imputation 3(vi) and 3(vii)

53. Even on the low test applicable to UCPR r 28.2 arguments, the only subject that is capable of giving rise to ridicule is the plaintiff’s hairstyle. I accept the defendant’s submission that these imputations therefore do not differ in substance from each other.

54. As to 3(vi), an imputation that the plaintiff is a ridiculous person should be struck out for lack of specificity for the reasons explained by Levine J in Scali v John Fairfax Group Pty Ltd (Supreme Court of NSW, Levine J, 15 July 1993), when his Honour struck out an imputation that the plaintiff was “deserving of being held up to public ridicule”. As the court pointed out in Toben v Milne at [31], the defendants should not be called upon to defend such an imprecise and wide imputation.

55. Imputation 3(vii) does, however, identify the basis for the ridicule as being the plaintiff’s hairstyle. This imputation is reasonably capable of being conveyed and will go to the jury.

56. If imputation 3(vii) remains, and is considered to be the “condition” to go with the “act” of exposing himself to ridicule (which the pleader attempts to capture in imputations 3(iii) and 3(iv)) this would be permissible.

The proceedings against the Daily Telegraph: 2016/210996

57. The plaintiff brings a separate statement of claim in relation to two publications, with essentially the same imputations, save for the replacement of “silly” with “shameful” to describe his haircut, in imputations 4(viii) and 7(viii).

The first Daily Telegraph publication

58. The first Daily Telegraph publication (Annexure B) is notable for its moderate headline, absence of commentary and lack of colourful language. The plaintiff’s hairstyle is identified (accurately) as a “mullet”, which is described as “interesting” (paragraph 8) and one of “a few other bold and bright haircuts at the party”. Two photographs of the plaintiff from his Facebook page, full-face, are captioned “Ziggy’s mullet has garnered a great deal of attention on the internet”. The article consists almost entirely of interviews with the plaintiff and his friends.

The first Daily Telegraph publication: imputations 4(i) and 4(ii)

59. The first matter complained of refers to “a photo of [the plaintiff] dancing at an 18th birthday party in Hurstville” (paragraph 5) becoming an internet sensation after it was posted by the photographer. It then refers to the party host saying that the plaintiff’s hair had been cut like that for several years and the plaintiff “definitely” was not going to change it. He then says:

“He couldn’t care less, there were a few other bold and bright haircuts at the party. He doesn’t mind people he doesn’t know making fun but annoyed [sic] at people he knows who are doing it.

I am surprised. We didn’t expect any of this. I like the meme where the guy is pinning the mullet.” (paragraphs 15 – 16)

60. There then appears a photograph of the plaintiff from his Facebook page wearing another hairstyle which includes long hair but an unshaven head. Underneath appears the caption “Copping it on the chin”. This is followed by a statement from the person who “works as a photographer while studying at university” that he “did not think the photo would “blow up” when he posted it onto his own Facebook page” (paragraph 17. The photographer went on to say he did not think it was “the right photo at the time”, but this is in terms of garnering social media attention and added:

“When I first saw that (the mullet) it didn’t seem real, it’s like a hair cut from [sic] movie The Combination. He’s copped it on the chin, the birthday boys are loving the attention. The response has been overwhelming.” (paragraphs 27 – 28)

61. None of the language of the matter complained of is capable of supporting an inference that the plaintiff permitted the taking of the photograph in circumstances where he “justifiably” exposed himself to ridicule as a result. As indicated above, I do not accept that the posing in the photograph or the fact that the photograph was taken by a photographer retained to take photographs of the birthday party amounted to permission.

62. Not even the memes which are reproduced are capable of conveying imputations of ridicule, given the context in which they are published, as the text of the matter complained of is clear to the same degree as that set out in Charleston v News Group Newspapers Ltd [1995] 2 AC 65. This is not a case of bane and antidote, requiring the weighing up of differing portions of the matter complained of by the tribunal of fact, but a total absence of characterisation of the plaintiff as anything other than a young man with an “interesting” hairstyle which had captured the attention of the internet.

63. Any imputation of the plaintiff justifiably exposing himself to ridicule by permitting himself to be photographed with a mullet hairstyle is therefore not reasonably capable of being conveyed.

64. An additional problem is the addition of the words “by the Daily Telegraph” and “by the public” in order to plead two imputations. This is also relevant to the question of capacity, because there is nothing in the matter complained of capable of conveying that the plaintiff permitted the photograph to be taken in circumstances where he would come to the defendant’s notice.

65. There were also objections as to form, as there are to imputations 4(iii) and 4(iv) below, which are in identical terms but which do not refer to the plaintiff having “permitted” being photographed.

66. Imputations 4(i) and 4(ii) are not reasonably capable of being conveyed.

The first Daily Telegraph publication: imputations 4(iii) and 4(iv)

67. Imputations 4(iii) and 4(iv), apparently acknowledging the difficulty of asserting that the plaintiff was posing for the photograph, base the imputation upon the plaintiff justifying the ridicule by the defendant (imputation 4(iii)) and the public (imputation 4(iv)) merely by having a mullet hairstyle.

68. For the same reasons as set out in relation to imputations 3(iii) and 3(iv) of the DailyMail.com publication, these imputations do not differ in substance from each other and draw an impermissible distinction between the “public” and the defendant.

69. Even if they did, for the same reasons as set out in relation to 4(i) and 4(ii) above, they are not reasonably capable of being conveyed. The matter complained of makes no value judgment of the plaintiff’s haircut and no sense of ridicule of the plaintiff is conveyed. While the “hilarious memes” are reproduced, they are hilarious memes about the plaintiff’s “interesting” haircut.

70. Imputations 4(iii) and 4(iv) are not reasonably capable of being conveyed.

The first Daily Telegraph publication: imputations 4(v), 4(vi) and 4(viii)

71. Imputations 4(v) and 4(vi) have the same defects of form as outlined in relation to the other publications where these imputations are pleaded. However, both these imputations and imputation 4(viii) suffer from the greater defect of relying upon a concept of ridiculousness that is simply not present in the matte complained of.

72. For the same reasons as set out above for imputations 4(i) to 4(iv), these imputations are not reasonably capable of being conveyed.

The first Daily Telegraph publication: imputation 4(vii)

73. Still less than imputations of ridicule could there be any possible basis for an imputation that the plaintiff is hideously ugly. Two photographs of the plaintiff’s full-on face are shown, under a caption that his mullet has garnered a lot of attention on the internet, but no portion of the matter complained of is capable of suggesting anything other than that his hairstyle has gained a lot of attention, that he is taking this attention “on the chin” and that he does not intend to change his hairstyle.

74. Not even the reproduction of the memes is capable of giving rise to such an imputation, for the same reason as noted above in relation to the “ridiculous” imputation.

75. This imputation is not reasonably capable of being conveyed.

Conclusions concerning the first Daily Telegraph publication

76. Only in the clearest cases would should the court strike out all the imputations pleaded as not being capable of being conveyed: Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n. Even at trial, the test to be applied, according to Herron CJ is the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. The extreme caution to be used when exercising the summary power is necessary because, as Herron CJ noted, a judge sitting alone should avoid “driving the plaintiff from the judgment seat”. That is all the more the case in a capacity hearing where summary judgment is sought, and Bik v Mirror Newspapers Ltd must be read subject to this qualification.

77. The defendant does not ask me to strike out the whole of the matter complained of as being incapable of conveying any defamatory imputation. The orders I have made in relation to the first matter complained of amount to striking out the imputations pleaded, and no more. If the plaintiff is able to formulate imputations in their place, he is not precluded from doing so.

The second Daily Telegraph publication: imputations 7(i) and 7(ii)

78. The second matter complained of (Annexure C) does not feature the original photograph taken at the party, but has extracted the portion of the photograph showing the plaintiff and his dancing partner (the photographer’s logo is not included). It would be an interesting issue of law if the “viral” nature of the internet publication was such that any imputation arising from that photograph could be pleaded as an extrinsic fact; perhaps fortunately, the concept of viral publications and extrinsic facts is an issue which can await determination on some other occasion.

79. This newspaper article commences with the heading “From bad hair day to mane [sic] attraction” and shows a photograph cropped from the original photograph, showing only the plaintiff and his partner, in a montage with two of the photoshopped pictures where the plaintiff’s fact has been used. The matter complained of commences (paragraphs 6 – 7):

“Meet Ziggy “the Mullet” Mossimani, the Sydney teenager whose bizarre hairdo has caused a global internet storm.

Ziggy’s cranial styling went viral after a photographer posted a picture of him dancing at an 18th birthday party at Hurstville.”

80. The matter complained of goes on to state that the photograph had been shared two million times and been the subject of “an endless stream of hilarious memes featuring the teenager’s mullet” (paragraph 8). It then reports the plaintiff as initially enjoying the attention but then having “fired back at his critics”, using expletive terms, and concludes with a statement by a friend that the plaintiff was not going to change his hairstyle. Mr Nool, who is described as “a photographer while studying at university” said he did not think the photograph would “blow up” when he posted it on Facebook. This is followed by a “Hairy Hall of Shame” which has no relevance to imputations 7(i) and 7(ii).

80. There is nothing in the text of the matter complained of to support an imputation that the plaintiff permitted the photograph to be taken, or that he sought the attention of the public (or the defendant) in any way.

81. Imputations 7(i) and 7(ii) are not reasonably capable of being conveyed.

The second Daily Telegraph publication: imputations 7(iii) and 7(iv)

83. Unlike the first matter complained of, this publication makes it clear that the plaintiff’s “bizarre hairdo” and “crazy cranial styling” is worthy of comparison to the “Hairy Hall of Shame”.

84. As is the case with imputations 3(iii) and 3(iv) in the DailyMail.com publication, these imputations do not differ in substance

The second Daily Telegraph publication: imputation 7(v)

85. For the same reasons as set out above, I consider the imputation “the plaintiff is a joke” to be bad in form and not to differ in substance from imputations 7(vi) and 7(viii).

86. This imputation is struck out.

The second Daily Telegraph publication: imputations 7(vi) and 7(viii)

87. For the same reasons as set out above, I consider the imputation “the plaintiff is a ridiculous person” to be bad in form and not to differ in substance from imputation 7(viii).

88. Taking into account the portions of the matter complained of which give rise to an imputation of ridicule (as set out above), imputation 7(viii) is reasonably capable of being conveyed but imputation 7(vi) will be struck out.

The second Daily Telegraph imputation 7(vii)

89. Mr Rasmussen did not submit that the “hideously ugly” imputations is based upon the photoshopped images (even the photograph where a skunk has been added to the plaintiff’s head), but upon the text of the matter complained of and in particular from the “Hairy Hall of Shame”, featuring famous actors and singers whose hairstyles are criticised.

90. From its headline (“mane attraction”) to the “Hairy Hall of Shame” at the end of the publication, the matter complained of makes it clear that the plaintiff’s mullet hairstyle is the subject of attack, but says nothing about the rest of his physiognomy. The “Hairy Hall of Shame” features photographs of six men whom it would be fair to describe as not only internationally famous but self-evidently handsome. No imputation of ugliness, let alone hideous ugliness, could arise from comparison to these persons or from the text used to describe them.

91. This imputation is not reasonably capable of being conveyed.

The proceedings against Australian Radio Network: 2016/211033

92. These are separate proceedings concerning three publications (see Annexures D, E and F) on the KIIS Radio website, with what is agreed to be identical imputations and content.

The first KIIS radio publication

93. While the text and photographs in these publications are largely the same as the DailyMail.com and Daily Telegraph, the differences, particularly with regard to the headlines, are of significance.

Imputations 3(i) and 3(ii)

94. The heading of this publication, “Sydney man showcases ridiculous haircut, internet goes crazy”, and goes on to say:

“Everyone, meet Ziggy, a 16-year-old man from Sydney who, for some reason, decided to cut his hair in a way that we simply cannot explain”

95. In paragraph 4, the matter complained of goes on to say:

“After being uploaded last Tuesday, the photo has obtained more than 11,415 comments, almost 10,000 likes and more than a whopping 1.7 million views.

Ziggy’s mullet has awarded him the kind of fame he likely never would have dreamed of.”

96. The photograph of the plaintiff has been cropped, and neither the other persons in the photograph nor the photographer’s logo appear. However, there is an interview with the photographer, who says that he was “walking round taking photos” but “did not think it would be the right photo” (i.e. a photo to catch social media attention). Since the picture was shared, that situation had changed.

97. The verb “showcase” is defined in Wiktionary (an appropriate dictionary to consult, given the online nature of the material in the matters complained of) as being to display, demonstrate, show or present. A showcase is a place for displaying goods. The inference is that the plaintiff is putting himself and his hairstyle on public display.

98. On a capacity basis, this publication is reasonably capable of giving rise to an imputation that the plaintiff permitted both the taking of the photograph of his “ridiculous” haircut and its posting on social media. The heading alone (especially the verb “showcases”) is sufficient to convey an imputation to this effect, but it is also aided by the references to “after being uploaded”, the kind of fame he would “never have dreamed of”, the apparent relationship between the photographer and the plaintiff that a loose-thinking reader might pick up from the references to “the right photo” and the reference to the picture being “shared on Tuesday”. On the r 28.2 UCPR test level, a reader would be entitled to infer that the plaintiff played some part in this uploading, in the hope of fame, as the next sentence goes on to say that the uploading gave him “the kind of fame he likely never would have dreamed of (paragraph 5).

99. This is sufficient for an imputation that the plaintiff permitted the photograph to be taken (and, for that matter, uploaded), but the current imputations must be struck out with leave to replead because of a series of form errors.

100. First, the plaintiff cannot plead two imputations in the place of one in circumstances where the delineation between “the public” and “the defendant” is without substance. The plaintiff is entitled to plead one imputation to the effect that by reason of permitting himself to be photographed with the hairstyle in question, he justifiably exposed himself to ridicule; any additional references to the public or a defendant are a matter for the plaintiff.

101. Second, the plaintiff needs to identify the defamatory sting with more precision. What is it about permitting himself to be photographed that made him justifiably expose himself to ridicule?

102. I will accordingly strike out both imputations with leave to replead.

Imputations 3(iii) and 3(iv)

103. Depending upon the form of the imputation pleaded to replace imputations 3(i) and 3(ii), these imputations would at best be fall-back imputations in the event that the jury did not find an imputation of permission to be conveyed, as clearly both cannot arise at the same time.

104. Additionally, the plaintiff cannot plead two imputations in place of one (and in this regard I note my acceptance of the submissions of the defendants objecting to the division between the defendant and “the public”).

105. I propose to strike both these imputations out as embarrassing in form and not to grant leave to amend in their current form, because it is impossible to tell whether they will differ in substance until the repleaded first imputation has been determined. If the plaintiff does plead a fall-back to the new imputation to replace imputations 3(i) and 3(ii), no fresh imputation is needed.

Imputation 3(vi)

106. As to imputation 3(vi), what passages of the matter complained and/or photographs give rise to an imputation that the plaintiff is “hideously ugly”?

107. The heading of the matter complained of says that he has a “ridiculous haircut” and this sentiment is repeated in paragraphs 4 and 5. However, the publication goes on to say that the photograph has generated 11,415 comments, 10,000 likes and 1.7 million views, which suggests that the hairstyle has its fans and opponents, but is not indicative of ugliness; to the contrary, 10,000 people pressed the “like” button.

108. As already noted in relation to the photoshopped pictures in the Daily Telegraph article, the closest any such picture gets to suggesting there is anything unattractive (as opposed to ridiculous) in the plaintiff’s appearance is the photograph where a skunk has been added to the plaintiff’s head. However, these photoshopped images need to be viewed in context of the whole of the matter complained of (Charleston v News Group Newspapers Ltd [1995] 2 AC 65). Viewed as a whole the matter complained of is commenting about his hairstyle being ridiculous, and this is not the same as saying that the plaintiff is ugly.

109. The additional material Mr Rasmussen relies on is the article at the side and photograph (paragraphs 3 and 3A) which say “Worst ever Yearbook haircuts” and show a photograph of a small, fat boy with a mullet haircut. However, this photograph needs to be seen in context with the six photoshopped pictures of the plaintiff showing him on Mount Rushmore, on a dollar bill, as “pin the tail on the donkey” and as a horse, none of which suggest physical ugliness on the part of the plaintiff, let alone “hideous” ugliness. The plaintiff has not been compared to Frankenstein, or some other hideously ugly figure; his haircut has been criticised as ridiculous.

110. This imputation is not reasonably capable of being conveyed and should be struck out.

111. I have set out above my reasons for holding that imputations 3(v) and 3(vii) should be struck out as embarrassing in form and not differing in substance from other imputations, and I make the same rulings here.

Imputations 3(v), 3(vii) and 3(viii)

112. I repeat my observations concerning the problems with form of imputations 3(v) and 3(vii).

113. As to 3(viii), as is the case with the other publications, the plaintiff is entitled to plead an imputation of condition (namely being a ridiculous person for having such a hairstyle) as well as an imputation amounting to an act.

114. This imputation is reasonably capable of being conveyed and will go to the jury.

The second and third publications

115. The second and third publications are essentially the same; the word “horrendous” is used in place of “ridiculous” in imputation 12(vii) but it was not suggested that this made any difference to any ruling I would make. Accordingly I propose to make the same rulings for all three publications.

Costs

116. These are very short publications which make the point that the plaintiff’s striking mullet haircut has generated a great deal of interest on the Internet, most of it humorous, and some of it in the form of clever observations, such as the “Pythagoras” direction in one of the memes.

117. The statements of claim in all three matters are overpleaded, in that the drafting seems to be designed to claim as many imputations as possible while simultaneously avoiding a defence of honest opinion or justification.

118. As a result, the defendants have been successful in nearly all of their objections. In those circumstances, the plaintiff should pay the defendants’ costs of these applications.

Orders

119. I make orders as follows:

Proceedings 2016/210991

1. Pursuant to UCPR r 28.2, imputations 3(i) and 3(ii) are not reasonably capable of being conveyed and are struck out.

2. Pursuant to UCPR r 14.30, imputations 3(iii), 3(iv) and 3(v) are struck out with leave to replead.

3. Pursuant to UCPR r 14.30, imputation 3(vi) is struck out as bad in form and as not differing in substance from imputation 3(vii).

4. Pursuant to UCPR r 28.2, imputation 3(vii) is reasonably capable of being conveyed.

5. The plaintiff is to pay the defendants’ costs of this application.

6. The plaintiff is to file and serve an amended statement of claim in fourteen days.

7. The proceedings are listed for further directions on 17 November 2016.

Proceedings 2016/210966

1. Pursuant to UCPR r 28.2, imputations 4(i), 4(ii), 4(iii), 4(iv), 4(v), 4(vi), 4(vii) and 4(viii) are not reasonably capable of being conveyed and are struck out.

2. Pursuant to UCPR r 28.2, imputations 7(i), 7(ii) and 7(vii) are not reasonably capable of being conveyed and are struck out.

3. Imputations 7(iii) and 7(iv) are struck out with leave to replead.

4. Imputations 7(v) and 7(vi) are struck out as not differing in substance from imputation 7(viii).

5. Imputation 7(viii) is reasonably capable of being conveyed.

6. The plaintiff is to pay the defendants’ costs of this application.

7. The plaintiff is to file and serve an amended statement of claim in fourteen days.

8. The proceedings are listed for further directions on 17 November 2016.

Proceedings 2016/211033

1. Pursuant to UCPR r 28.2, imputations 3(i) and 3(ii) are struck out with leave to replead.

2. Imputations 3(iii), 3(iv), 3(v) and 3(vii) are struck out pursuant to UCPR r 14.30.

3. Imputation 3(vi) is not reasonably capable of being convey and is struck out.

4. Pursuant to UCPR r 28.2, imputation 3(viii) is reasonably capable of being conveyed and will go to the jury.

5. Pursuant to UCPR r 28.2, imputations 10(i) and 10(ii) are struck out with leave to replead.

6. Imputations 10(iii), 10(iv), 10(v) and 10(vii) are struck out pursuant to UCPR r 14.30.

7. Imputation 10(vi) is not reasonably capable of being convey and is struck out.

8. Pursuant to UCPR r 28.2, imputation 10(viii) is reasonably capable of being conveyed and will go to the jury.

9. Pursuant to UCPR r 28.2, imputations 12(i) and 12(ii) are struck out with leave to replead.

10. Imputations 12(iii), 12(iv), 12(v) and 12(vii) are struck out pursuant to UCPR r 14.30.

11. Imputation 12(vi) is not reasonably capable of being convey and is struck out.

12. Pursuant to UCPR r 28.2, imputation 12(viii) is reasonably capable of being conveyed and will go to the jury.

13. The plaintiff is to pay the defendants’ costs of this application.

14. The plaintiff is to file and serve an amended statement of claim in fourteen days.

15. The proceedings are listed for further directions on 17 November 2016.

**********

Annexure A - DailyMail.com Matter Complained Of (15.0 MB, pdf)

Annexure B - Daily Telegraph online article (508 KB, pdf)

Annexure C - Daily Telegraph print article (518 KB, pdf)

Annexure D - Australian Radio Network First Matter Complained Of (747 KB, pdf)

Annexure E - Australian Radio Network Second Matter Complained Of (2.06 MB, pdf)

Annexure F - Australian Radio Network Third Matter Complained Of (274 KB, pdf)

Amendments

25 October 2016 - Annexures renamed