Rahim, Charles v Seven Network Limited and Ors (Ruling No; 2)
[2010] VCC 115
•23 February 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
DEFAMATION DIVISION
Case No. CI-08-02374
| CHARLES RAHIM | Plaintiff |
| v | |
| SEVEN NETWORK LIMITED | First-named Defendant |
| ROHAN TRAVIS WENN | Second-named Defendant |
| SEVEN NETWORK (OPERATIONS) LMIITED | Third-named Defendant |
| CHANNEL SEVEN MELBOURNE PTY LTD | Fourth-named Defendant |
| GAVIN WILSON | Fifth-named Defendant |
| AUSTRALIAN POLYGRAPH SERVICES PTY LTD | Sixth-named Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 February 2010 |
| DATE OF RULING: | 23 February 2010 |
| CASE MAY BE CITED AS: | Rahim, Charles v Seven Network Limited & Ors (Ruling No 2) |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0115 |
RULING
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Catchwords: DEFAMATION – pleading - fair comment - ruling made on 6 November 2009 that facts particularised by the defendant did not support the defence of fair comment – defence amended – whether amendments particularised facts supporting the defence of fair comment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Catlin | George Konidaris & Co |
| For the Defendant | Ms G Schoff | Corrs Chambers Westgarth |
| HIS HONOUR: |
Background
1 On 6 November 2009, I ruled that the defendants could not sustain their pleading of fair comment.[1]
[1] [2009] VCC 1770
2 The defendants filed and served Further Amended Defences pursuant to Consent Orders which I made on 2 December 2009.
3 The application came back before me on 3 February 2010. Mr Catlin appeared for the plaintiff, and Ms Schoff appeared for the defendants.
4 Mr Catlin submitted that the relevant amendments to the defence suffered from the same defect. He submitted, therefore, that the relevant amendments should be struck out. Ms Schoff submitted that the relevant amendments have cured the defect and should be allowed to stand.
The Amendments
5 In order to determine whether the defendants have cured the defect on which I have previously ruled, it is necessary to make a comparison between the former particulars and the present particulars. The former particulars are described in my previous Ruling and I do not intend to replicate them here. The particulars respond to paragraph 13 of the Statement of Claim.
6 The relevant section of paragraph 13 of the Statement of Claim is as follows:
"(e) in the conduct of his business, trade and profession the Plaintiff
intentionally and deliberately wrecks and has wrecked marriages;
(f) in the conduct of his business, trade and profession, the Plaintiff intentionally and deliberately attempted to wreck the marriage of Jennifer and Wayne Appleby;
(g) the Plaintiff was conducting polygraph tests without proper training and/or qualifications."
7 The present particulars challenged by the plaintiff have been pleaded in paragraph 24 as follows:
(iv) With respect to the meaning set out in paragraph 13(e) of the Statement of Claim the defendants rely upon the following facts which provide a basis for that comment:
a. the plaintiff has on a number of occasions performed polygraph tests upon women whom he knew to be married to determine whether they were telling the truth about their fidelity in their marriage. Those women include Jennifer Appleby and Elena Titta; b. Jennifer Appleby and Elena Titta each came to see the plaintiff together with their husbands. Both couples explained to the plaintiff their reasons for requiring a polygraph test and it must have been apparent to the plaintiff that the welfare of each marriage might depend upon a positive result to the polygraph test he was engaged to perform; c. Despite the matters in sub-paragraph a and b above, during the course of the polygraph tests that he conducted the plaintiff asked Jennifer Appleby and Elena Titta a number of questions of a sexual nature, including questions about their sexual history, masturbation and sexual fantasies which were: (A) unnecessary in the conduct of a valid polygraph test;
(B) did not assist in the conduct of a valid polygraph test;
and / or
(C) were calculated to create a strong physiological response in the women which might adversely affect the veracity of the polygraph test;
d.
The plaintiff engaged in such conduct deliberately and not for any legitimate purpose associated with the conduct of the relevant polygraph tests.
e.
As a result of the matters set out in sub-paragraph c hereof, the polygraph test results provided by the plaintiff with respect to Jennifer Appleby and Elena Titta were inaccurate in that they recorded that each woman was lying, when in fact each woman had answered the questions asked of them during the test truthfully:
f.
The Applebys felt lucky that their relationship survived their encounter with the plaintiff:
g.
The plaintiff performed a polygraph tests upon Elena Titta on or about 1 September 2005. As a result of the polygraph test results supplied by the plaintiff, Elena Titta felt that she would never be able to convince her husband that she had been faithful to him. Her husband asked her for a divorce at the end of December 2005 and left her and their children to live in Cyprus in May 2006.
(v) With respect to the meaning set out in paragraph 13(f) of the Statement of Claim the defendants rely upon the facts set out in sub paragraphs (iv) a, b, c, d, e and f hereof which provide a basis for that comment.
(vi) With respect to the meaning set out in paragraph 13(g) of the Statement of Claim the defendants rely upon the following facts which provide a basis for that comment:
a.
The facts set out in the particulars under paragraph 22 hereof which demonstrate that on at least 2 occasions the plaintiff has performed a polygraph test in a manner and in accordance with methods that are contrary to those adopted by properly trained and qualified polygraph examiners and with the consequence that the test results were inaccurate;
b.
During the course of conducting a polygraph test upon Jennifer Appleby the plaintiff took a number of calls on his mobile telephone. A properly trained and qualified examiner would know not to engage in such conduct during a polygraph test;
c.
Further, the plaintiff has claimed on a number of occasions to have trained and achieved certification to conduct polygraph tests but when asked has declined to provide particulars of such training or of his qualifications:
A.
In or about mid 2004 the fifth defendant telephoned the plaintiff pretending to be a potential customer. During the course of the telephone conversation the fifth defendant said that he wanted to be sure that the plaintiff was properly trained in polygraph testing and asked him where he had trained. The plaintiff said that he had been trained in America. When the fifth defendant asked him whereabouts in America, the plaintiff declined to tell him and said “that is none of your business”;
B.
The plaintiff told another customer that he had received his polygraph training in Israel;
C.
By email dated 6 February 2004 from the plaintiff to the sixth defendant, the plaintiff admitted that he had not received any training in polygraph testing in the USA and did not hold any formal qualification to conduct polygraph tests. The plaintiff further asserted that there was no need for him to complete a formal course in order to conduct polygraph tests. A copy of the email is in the possession of the defendants’ solicitors and may be inspected by appointment;
D.
In 2005 the fifth defendant telephoned a business listed in the Adelaide telephone directory which he understood was offering polygraph tests and spoke to a woman who answered the telephone. The fifth defendant pretended to be a potential customer who required a polygraph test and asked what qualifications the tester had. The woman said the following words or words to similar effect “all of our examiners are fully qualified and that’s all you need to know” and hung up. About 5-10 minutes later the plaintiff telephoned the fifth defendant and abused him and threatened him with violence and to bug his telephone.
E.
On 6 June 2007, during the course of the interview between the plaintiff and the second defendant, the second defendant asked the plaintiff to provide evidence of his qualifications to conduct polygraph tests and the plaintiff agreed to do so by facsimile;
F.
By email dated 7 June 2007 sent to the plaintiff’s solicitor Mr George Konidaris, the second defendant again requested a copy of the plaintiff’s qualification to conduct polygraph tests. A copy of the email is in the possession of the defendants’ solicitors and may be inspected by appointment;
G.
By email dated 8 June 2007 Mr Konidaris informed the second defendant that he was seeking the plaintiff’ s instructions with respect to the request for a copy of his qualifications. A copy of the email is in the possession of the defendants’ solicitors and may be inspected by appointment;
H.
At not time prior to the publication of the programme did the plaintiff provide the second defendant with a copy of his qualification to conduct polygraph tests."[2]
[2] The same pleading is relied upon the fifth and sixth defendants relevant to their pleading to paragraph 17 of the Statement of Claim
8 Clauses (iv) a, b, c and d, are in substance, a repetition of the former particulars in paragraph 22 (i)-(v).
9 In an attempt to cure the defect, particulars have been sub joined to paragraph 24 under the heading of "Facts upon Which the Comment is Based".
10 In relation to the particulars relevant to paragraph 13(e) of the Statement of Claim, the additional particulars are that the Applebys felt lucky that their relationship survived their encounter with the plaintiff (clause (iv) f), and that Elena Titta felt that she would never be able to convince her husband that she had been faithful to him, and that her husband asked for a divorce at the end of December 2005, leaving her and their children to live in Cyprus in May 2006.
11 The particulars relevant to the Applebys does not substantiate an allegation that the plaintiff intentionally and deliberately wrecks and has wrecked marriages. The particulars disclose that the Applebys’ marriage was not wrecked, but is intact. The fact that it is intact cannot sit well with an allegation that their experience, therefore, is an example of a wrecked marriage.
12 The particulars relevant to Elena Titta also do not substantiate an allegation that the plaintiff intentionally and deliberately wrecks and has wrecked marriages. The particulars disclose Elena Titta’s state of mind relevant to what she believed she could convince her husband about regarding her fidelity. That is not a fact which supports an allegation that her marriage was wrecked. The second part of the relevant particulars merely disclose that her marriage came to an end, but the particulars do not make the necessary causal connection between her marriage coming to an end and the plaintiff's conduct as a person who wrecks and has wrecked marriages.
13 In relation to the particulars relevant to paragraph 13(f) of the Statement of Claim, the same particulars relevant to paragraph 13(e) are relied upon. The additional particulars are said to be the basis for the allegation that the plaintiff intentionally and deliberately attempted to wreck the marriage of the Applebys, and why the Applebys felt lucky that their relationship survived their encounter with the plaintiff.
14 Simply by the adding an allegation of the Applebys’ feelings relevant to their encounter with the plaintiff does not cure the flaw on which my previous Ruling was based. How are their feelings relevant to their encounter with the plaintiff particulars of the plaintiff's conduct in intentionally and deliberately attempting to wreck their marriage? The particulars really do no more than plead their reaction; they do not plead the facts going to the alleged conduct of the plaintiff that is said to constitute the attempt to wreck their marriage, nor what characteristics there were in that attempt by the plaintiff which were both intentional and deliberate.
15 In relation to the particulars relevant to paragraph 13(g) of the Statement of Claim, the particulars can conveniently be described as falling into two categories: the first is the alleged failure by the plaintiff to conduct the polygraph tests in a professional manner which suggests a lack of proper training and qualification in the conduct of polygraph tests (clauses (vi)a and b); the second is the alleged reticence or refusal of the plaintiff to provide the name of the institution where he obtained his training and certification to conduct polygraph tests relevant to the allegation that he has neither the training nor the qualification to conduct polygraph tests (clause (vi)c, A-H).
16 The reticence or refusal of the plaintiff, or any other persons to whom enquiries were made, to provide details of his training or qualifications cannot support an inference that he has no training or qualifications. It might create a suspicion, but no more. However, the e-mail dated 6 February 2004 (clause (vi)c, C) is said by the defendants to constitute an admission by the plaintiff as follows:
"… the plaintiff admitted that he had not received any training in polygraph testing in the USA and did not hold any formal qualification to conduct polygraph tests. The plaintiff further asserted that there was no need for him to complete a formal course in order to conduct polygraph tests."
17 The foregoing, together with the admission allegedly made by the plaintiff that he had obtained his training in the conduct of polygraph tests in America (clause (vi)c, A), and the allegation that he informed another customer that he had received that training in Israel (clause (vi)c, C), constitute particulars of the facts going to the heart of the allegation that the plaintiff was conducting polygraph tests without proper training and/or qualifications.
18 Firstly, the e-mail, if proven, constitutes an admission by the plaintiff that he does not have training and/or qualifications from any institution for the purpose of training persons in the conduct of polygraph tests; and secondly, the conflict in the plaintiff's assertion of the country where he obtained his training is inconsistent with the plaintiff having attended a specific institution in a particular country, and having obtained training at that institution in that country. The flaw which I previously considered was evident has been cured by the amendment.
19 Mr Catlin submitted that I should ignore the amendment relevant to paragraph 13(g) because those particulars were neither stated nor sufficiently indicated in the publication, nor were they notorious. Ms Schoff submitted that the facts upon which the defendants rely as their basis for the defence of fair comment need not be stated in the publication complained of by the plaintiff, and furthermore, that the defendants are not precluded from pleading extrinsic facts in support of a plea of fair comment.[3]
[3] Clark v Norton [1910] VLR 494, per Cussen J, at 505-507, and particularly at 507; Lowe v Associated Newspapers Ltd [2007] QB 580, per Eady J, at 599, and Channel Seven Adelaide Pty Ltd v Manock
20 The principal of law drawn from those authorities by Ms Schoff is essentially as follows:
"Where facts are set out in the words complained of, so that the reader can see that an inference or opinion is based upon them, then the defence of fair comment will be available; but the defendant is not tied to the facts stated in the article. He may invite the jury to take into account extrinsic facts ‘known to the writer’ as part of the material on which they are to decide whether a person could honestly express the opinion or draw the inference."[4]
[4] [2007] 232 CLR 245, at 274-275 Channel Seven Adelaide Pty Ltd v Manock (supra), at 274-275
21 The e-mail is extrinsic evidence which the defendants can rely upon. Therefore, the alleged admission by the plaintiff contained in the e-mail, together with the facts going to the representations by the plaintiff that he obtained his qualifications in Israel and the USA, are sufficient to meet the attack made upon the particulars by the plaintiff.
Conclusion
22 Therefore, the particulars contained in the Further Amended Defence of the first, second, third and fourth defendants relevant to paragraphs 13(e) and (f) must be struck out, and as a consequence the equivalent pleading relied upon by the fifth and sixth defendants must likewise be struck out.
23 The formal Orders I make are as follows:
(1)
The defences of fair comment pleaded by the first to fourth defendants to paragraph 13(e) and (f) of the Statement of Claim are struck out, and the equivalent pleading of fair comment by the fifth and sixth defendants are struck out.
(2) The defendants have leave to file and serve further amended defences
on or before 4.00 pm on 11 March 2010.(3) The defendants pay the plaintiff's costs of the application to be taxed on
County Court scale "D".(4)
The proceeding be referred to a Directions Hearing before the Judge in Charge of the Defamation List at 10.00am on 19 March 2010 for further directions as to the future conduct of the proceeding.
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