Sakr v Australian Broadcasting Corporation; Australian Broadcasting Corporation v Sakr

[2015] NSWCA 310

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Sakr v Australian Broadcasting Corporation; Australian Broadcasting Corporation v Sakr [2015] NSWCA 310
Hearing dates:	1 September 2015
Date of orders:	02 October 2015
Decision date:	02 October 2015
Before:	Macfarlan JA at [1]; Ward JA at [3]; Sackville AJA at [88]
Decision:	(1) Extend to 7 May 2015 the time for the filing of Ms Sakr’s summons for leave to appeal from the decision of the primary judge to strike out imputation 4(a) in the initial statement of claim, grant leave to appeal and dismiss the appeal. (2) Grant the ABC leave to cross-appeal from the decision of the primary judge not to strike out imputations 4(b) and (c) in the initial statement of claim and to appeal from the decision of the primary judge not to strike out imputation 4(a) as re-pleaded in the draft second amended statement of claim. (3) Strike out “willingly” from imputation 4(a) in the third amended statement of claim and direct that Ms Sakr file a fourth amended statement of claim amending imputations 4(b) and (c) in accordance with these reasons. (4) Otherwise dismiss the ABC’s cross-appeal from the decision of the primary judge in relation to imputations 4(b) and (c) in the initial statement of claim. (5) Order Ms Sakr to pay the ABC’s costs both of her appeal and of its appeal from the second judgment. (6) Order that the costs of the ABC’s cross-appeal from the first judgment be costs in the cause.
Catchwords:	DEFAMATION – whether leave to appeal/cross-appeal should be granted to applicant in relation to re striking out of pleaded imputation and to respondent in relation to refusal to strike out that imputation as subsequently re-pleaded and other pleaded imputations – whether matter complained of capable of giving rise to the imputations pleaded – objection as to form of particular imputations
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 28.2
Cases Cited:	Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Hepburn v TCN Channel Nine Pty Limited [1983] 2 NSWLR 682 Nationwide News v Hibbert [2015] NSWCA 13 Singleton v Ffrench (1986) 5 NSWLR 425 Singleton v John Fairfax & Sons Ltd (Supreme Court (NSW), Hunt J 20 February 1980, unreported) The Federal Capital Press of Australia Pty Ltd v Balzola [2015] NSWCA 285 Toben v Milne [2014] NSWCA 200
Category:	Principal judgment
Parties:	Reme Sakr (Applicant 2015/00135973; Respondent 2015/00091274) Australian Broadcasting Corporation (Respondent 2015/00135973; Applicant 2015/00091274)
Representation:	Counsel: T Molomby SC (Applicant 2015/00135973; Respondent 2015/00091274) ATS Dawson with MJ Lewis (Respondent 2015/00135973; Applicant 2015/00091274)   Solicitors: O’Brien Solicitors (Applicant 2015/00135973; Respondent 2015/00091274) ABC Legal & Business Affairs (Respondent 2015/00135973; Applicant 2015/00091274)
File Number(s):	2015/00135973; 2015/00091274
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 12 February 2015; 26 February 2015 Before: Gibson DCJ File Number(s): 2014/316552

HEADNOTE

[This Headnote is not to be read as part of the judgment]

Ms Sakr has brought proceedings in the District Court against the ABC seeking damages for defamation following the publication of a story in the ABC’s Media Watch television program that was critical of a Good Weekend article in relation to a journey she had made to Syria to see her father.

In her initial statement of claim Ms Sakr pleaded that the matter complained of gave rise to four defamatory imputations, one of which being that she is a supporter of the brutality of the Assad regime in Syria (imputation 4(a)). The ABC objected to each of the imputations pleaded, both as to capacity and form. The primary judge struck out imputation 4(a) (and 4(d)) on the basis that the imputation was not capable of arising from the matter complained of but gave Ms Sakr leave to re-plead. The primary judge indicated that she would allow the two other imputations to go to the jury.

Ms Sakr filed an amended statement of claim re-pleading the imputations that had been struck out. Relevantly, the re-pleaded imputation 4(a) was that she “willing backs a brutal regime in Syria, which is led by a war criminal and has committed gross violations of human rights”. The primary judge rejected the ABC’s objection to that imputation. The ABC raised objection to the re-pleaded imputation 4(a) again on the basis that it was not capable of arising from the matter complained of. It argued that the word “willingly” connoted conscious support of the brutality of the regime.

The primary judge, with some debate as to the manner in which the re-pleaded imputations 4(a) and 4(d) were to be understood, indicated that those would be allowed to go to the jury.

Following correspondence from the ABC in which it conveyed its understanding of the ambit of the re-pleaded imputations, Ms Sakr commenced proceedings seeking leave to appeal from the striking out of imputation 4(a). The ABC in turn leave to cross-appeal from the primary judge’s refusal to strike out imputations 4(b) and 4(c) in the initial statement of claim and to appeal from the primary judge’s subsequent refusal to strike out the re-pleaded imputation 4(a).

Held, granting leave to appeal and cross-appeal as sought by the respective parties and dismissing the respective appeals/cross-appeal:

1.   In light of the scope for confusion between the parties as to the import of the first judgment in relation to imputation 4(a) as re-pleaded, following the decision in Nationwide News v Hibbert [2015] NSWCA 13, and so that all issues currently in dispute as to the pleaded imputations can be resolved, the leave sought by the respective parties should be granted, though ordinarily it is appropriate to grant leave from a discretionary ruling only where there is an issue of principle involved or an injustice going beyond what is reasonably arguable. (Ward JA at [35] – [36]; Macfarlan JA and Sackville AJA agreeing at [1] and [89] respectively) Per Sackville AJA (at [89]) the appropriate course if the applicant wished to challenge the original ruling was to seek leave to appeal from that ruling rather than repeat the substance of the struck out pleading in an amended statement of claim.

2.   Imputation 4(a) as initially pleaded was not capable of arising from the matter complained of. (Macfarlan JA at [2]; Ward JA at [60]-[63]; Sackville AJA at [90]).

3.   The re-pleaded imputation 4(a) trespasses on the ruling made in the first judgment by the primary judge and is apt to give rise to confusion. The ABC’s complaint as to the use of the word “willingly” should be upheld. (Ward JA at [69], Macfarlan JA and Sackville JA agreeing at [1] and [88] respectively)

4.   The primary judge did not err in her rulings on imputations for 4(b) and 4(c) but the pleading should be amended to make clear that they are limited in the manner indicated by the applicant’s counsel and in accordance with these reasons. (Ward JA at [83]-[85]; Macfarlan JA and Sackville AJA agreeing at [1] and [88] respectively.

5.   The applicant should pay the ABC’s costs of her appeal and its appeal from the second judgment and that the costs of the ABC’s cross-appeal from the first judgment be costs in the cause (Ward JA at [86]; Macfarlan JA and Sackville AJA agreeing at [1] and [88] respectively.

Judgment

1. MACFARLAN JA: I agree with the judgment of Ward JA and add the following observations.

2. The primary judge struck out imputation (a) because an imputation that Ms Sakr supported the brutality of the Assad regime was not capable of arising from the broadcast. Her Honour was correct to do this because, while an imputation of Ms Sakr’s support for the regime clearly arose, the broadcast did not imply that she knew of or accepted that the regime engaged in brutality. The nature of her support for the regime as described in the broadcast was consistent with her non-acceptance of allegations of misconduct by the regime, as illustrated by the broadcast’s express reference to her non-acceptance of the regime’s use of chemical weapons (one aspect of brutality) and her repeated references to “foreign invaders” being the cause of Syria’s problems.

3. WARD JA: Ms Sakr has brought proceedings in the District Court of New South Wales against the Australian Broadcasting Corporation (ABC) seeking damages for defamation consequent upon the publication by the ABC of a story in its Media Watch television program on 24 March 2014. The matter complained of was subsequently published again on ABC television, on 25 and 26 March 2014, and through ABC iView and on the ABC website.

4. The matter complained of was a story that was critical of an article published in the Good Weekend section of The Sydney Morning Herald on the weekend of 1 – 2 March 2014 in relation to a journey made to Syria by Ms Sakr, a Syrian-Australian woman, to visit her father who was described in the story as having worked as a house-painter when he had lived in Australia. The criticism made of the Good Weekend article, in essence, was of a lack of balance in its analysis of the war in Syria and incomplete disclosure of the circumstances surrounding Ms Sakr’s travel to Syria. Specifically, there was a failure to disclose that Ms Sakr was a supporter of the Assad regime and that while she was in Syria she was part of a delegation, in which the author of the Good Weekend article also participated, that had visited the Syrian President.

5. Ms Sakr maintains that the matter complained of conveyed imputations that were defamatory of her. The present applications relate to interlocutory rulings made by the primary judge as to the imputations that may be left to the jury. Each of Ms Sakr and the ABC seeks leave to challenge one or other of those rulings. To put those challenges in context I first summarise the matter complained of.

Matter complained of

6. The commentary by the journalist who presented the Media Watch program, Mr Barry, included the following statements:

Reme Sakr’s mission, Fairfax Media’s Good Weekend told us, was to bring her father Malek back to Sydney, where he’d lived and worked as a house painter for many years.

The pilgrimage climaxed in a tearful reunion, after which her father determined to stay and defend his homeland.

…

The tale was beautifully told. But a couple of things seemed not quite right.

The father turned out to be a leader of the minority Druze community.

And the story side-stepped the brutality of President Assad’s Syrian regime.

What’s more, Reme Sakr clearly received special favours on her trip. [reference there being made to a letter from the Syrian Government in effect to provide Ms Sakr with safe passage through checkpoints]

…

So is Reme Sakr just an ordinary Australian woman?

Well, no.

She’s a leading light in Hands off Syria, which backs President Assad, refuses to admit he’s used chemical weapons, and paints the popular uprising as a foreign invasion.

7. The episode continued with the statement that “[a]t a rally in Sydney last June, Sakr was one of the loudest voices” (accompanied by video footage of Ms Sakr there saying “A civil war is fought between two sides of one nation. Not foreign militants and the Syrian people”); reference to another Hands Off Syria rally in October where Ms Sakr was “billed as the organiser”; and a clip from YouTube in which Ms Sakr said “I am angry that my tax dollars are being sent overseas to buy weapons and supplies for the foreign militants who are destroying the country of my mother and family”..

8. Mr Barry stated that Ms Sakr had not gone to Syria just to see her father but had also joined a delegation from Hands Off Syria and the WikiLeaks Party “to express solidarity with Assad”. Photographs of Ms Sakr in a meeting with President Assad were shown. Mr Barry stated that the visit was “roundly condemned by all sides of Australian politics” and that the delegation Ms Sakr went with served as “useful propaganda” for the Syrian government. Reference was made to a picture posted by the President of the delegation on his Instagram account and to there having been extensive coverage of the visit on Syrian TV News, accompanied by footage to that effect.

9. The following statements were then made:

So what did Good Weekend tell its readers about all this? Not much.

There was no mention of Hands Off Syria or of WikiLeaks and no hint of any political storm.

Instead, we were told that Sakr had joined a delegation of academics as a translator.

10. Mr Barry also noted that the Good Weekend article had not disclosed the fact that the journalist who had written the article (Mr Ray) had also travelled with the delegation to Syria.

11. Mr Barry went on to say:

Now, none of this would matter much if Good Weekend had stuck to the personal … but its analysis of the complex war in Syria was simplistic and one-sided.

It rightly damned the terrorists and fundamentalists who are trying to establish an Islamic State, but it made no mention of the moderate Syrian opposition.

And no mention of the Assad’s government use of chemical weapons or the fact that UN investigators have accused both sides of war crimes:

[an extract from a United Nations General Assembly Report of the Independent International Commission of Enquiry into the Syrian-Arab Republic of 12 February 2014 was then shown on the screen, namely included the statement that “Government forces have committed gross violations of human rights and the war crimes of murder, hostage-taking, torture, rape and sexual violence, recruiting and using children in hostilities and targeting civilians in sniper attacks].

So why was this glossed over?

The various iterations of the pleaded imputations

12. In her initial statement of claim filed on 28 October 2014, Ms Sakr pleaded the following four defamatory imputations:

4(a)   she is a supporter of the brutality of the Assad regime in Syria;

4(b)   she protects the brutal Assad regime in Syria by refusing to admit that it has used chemical weapons;

4(c)   she has received special favours from the brutal Assad regime in Syria in return for her support; and

4(d)   she has tried to create favourable propaganda for the brutal Assad regime in Syria.

13. The ABC objected to each of the imputations pleaded, both as to capacity and form.

14. The primary judge heard submissions on behalf of both parties on 12 February 2015 and indicated on that occasion that she would strike out imputations 4(a) and 4(d), with leave to re-plead, but that imputations 4(b) and 4(c) would go to the jury. Her Honour directed that an amended statement of claim be filed and served within seven days and stood the matter over to Thursday, 26 February 2015. Her Honour subsequently published reasons for those rulings in a judgment provided to the parties by email on 13 February 2015 (“the first judgment”).

15. Following the grant of leave, Ms Sakr filed an amended statement of claim on 19 February 2015. Relevantly, imputations 4(a) and 4(d) were re-pleaded as follows:

4(a)   she willingly backs a brutal regime in Syria, which is led by a war criminal and has committed gross violations of human rights.

4(d)   she has deliberately created powerful “PR” for the brutal Assad regime in Syria.

16. A new (fifth) imputation was added, without leave, as follows:

4(e)   she deliberately misrepresents the situation in Syria for political purposes.

17. The fifth imputation is not pressed.

18. The ABC raised its objection to the amended pleading in a letter dated 25 February 2015 to Ms Sakr’s solicitors.

19. In relation to the re-pleaded imputation 4(a), the ABC argued that it suffered from the same defect which had resulted in its predecessor being struck out, and was inconsistent with the reasons for the first judgment, namely, that an imputation to the effect that Ms Sakr consciously supported the brutal conduct ascribed to the Assad regime was incapable of arising from the matter complained of. The ABC considered that, insofar as the words “willingly backs a brutal regime in Syria” connoted conscious support of brutality, this indicated a subjective intention on the part of Ms Sakr not simply to support the regime but to do so in full awareness of its brutality.

20. In relation to imputation 4(d) it was said that the replacement of “tried to” with “has deliberately” was ineffective because the imputation was incapable of arising in either case since nothing in the matter complained of attributed to Ms Sakr an intention to create PR or propaganda for the regime. The ABC took the position that the fact that things were said to have had the effect of creating PR did not necessarily imply that the effect was anticipated and noted that, even assuming that inference could be made, Ms Sakr was not said to be the controlling mind behind either the delegation or the Good Weekend article.

21. The ABC indicated an intention to seek a ruling on a separate question pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (UCPR) as to whether the imputations re-pleaded at 4(a) and 4(d) were reasonably capable of being conveyed from the material published.

22. It is relevant here to note that in the intervening period between the first judgment and 25 February 2015, this Court had handed down its decision in Nationwide News v Hibbert [2015] NSWCA 13. There, Sackville AJA, with whom Barrett and Emmett JJA agreed, noted that the procedure provided by UCPR r 28.2 finally resolves an issue, subject to an application for leave to appeal. Emmett JA, in his concurring reasons at [2], observed that where the procedure contemplated by UCPR r 28.2 had not been invoked the applicants in that case would not be precluded from ventilating again the question whether or not the imputations were reasonably capable of being supported. Hence, no doubt, the stance foreshadowed by the ABC in its letter of 25 February 2015.

23. The matter came back before her Honour for directions on 26 February 2015. On that occasion, a “draft” second amended statement of claim was handed up. This (not the first version of the amended statement of claim) was the form of the pleading that was the subject of the rulings in due course made by her Honour on 26 February 2015. It differed, relevantly, from the amended statement of claim that had been filed on 19 February 2015 in that imputation 4(e) was deleted and there was an amendment to the particulars of aggravation.

24. Her Honour heard argument on 26 February 2015 as to the re-pleaded imputations. Counsel appearing for the ABC on that occasion (Mr Lewis) made clear that what was being sought was a separate determination pursuant to r 28.2 of the UCPR.

25. In the course of the hearing on that occasion her Honour indicated that she did not accept the ABC’s objection to the use of the word “willingly” in the re-pleaded imputation 4(a) but that she considered that the regime should be identified as the “Assad” regime. As far as the re-pleaded imputation 4(d) was concerned, her Honour accepted Mr Lewis’ criticism of the word “deliberately”.

26. Her Honour ruled accordingly, not upholding the ABC’s complaint as to the re-pleaded imputation 4(a). Her Honour’s reasons were subsequently published on 19 March 2015 (“the second judgment”).

27. In the interim, the so-called “draft” second amended statement of claim, which had been handed up at the directions hearing on 26 February 2015, was filed in the District Court (on 2 March 2015) as also was a third amended statement of claim, that being the pleading on which Ms Sakr now wishes (subject to the outcome of her application for leave to appeal from the first judgment) to proceed to trial. That version, broadly in accordance with her Honour’s rulings on 26 February 2015, re-pleaded the amended imputation 4(a) to read “She willingly backs the brutal Assad regime in Syria, which is led by a war criminal and has committed gross violations of human rights” (i.e., changing the indefinite article to the definite article and including the word “Assad”) and imputation 4(d) by deleting the word “deliberately”.

Events leading up to the present applications

28. By letter dated 2 April 2015, the ABC informed Ms Sakr’s solicitors of its view that, consistently with the first judgment, the re-pleaded form of imputation 4(a) could rise no higher than an imputation of support for the Assad regime, but not its brutality, and that the same applied to the extent that imputations 4(b) and 4(d) referred to the “brutal” Assad regime (in the context of Ms Sakr’s protection of the regime, her receiving special favours from it and her creating powerful PR for it).

29. The ABC contended that it need only prove, in its defence of the claim, that: Ms Sakr willingly backs the Assad regime; the Assad regime is brutal; the Assad regime is led by a war criminal; and the Assad regime has committed gross violations of human rights. It maintained that it was not necessary to prove that Ms Sakr had any knowledge of those last three matters or that her support for the Assad regime was in any way directed to its brutality, the fact that it was led by a war criminal or the fact that it had committed gross violations of human rights. The ABC foreshadowed an application to have the position clarified when the matter was next before the District Court on 16 April 2015.

30. In response, by letter dated 9 April 2015, Ms Sakr’s solicitors advised that they did not agree with what was said about the plaintiff’s knowledge either in relation to the re-pleaded 4(a) imputation or the other imputations but that the ABC’s letter had prompted them to consider the situation overall “more closely” and that they believed there was a “larger problem”. That “problem” seemingly was that they did not agree with the decision in relation to the capacity of imputation 4(a) as originally pleaded. It was asserted that the most effective way of limiting wasted costs would be for Ms Sakr at that stage to seek leave to appeal against the first decision rather than to exercise any right of appeal following the conclusion of the District Court proceedings.

31. The ABC’s response, by letter dated 22 April 2015, pointed to a contradiction between the stated disagreement as to the ABC’s interpretation of the re-pleaded imputation 4(a) and irrelevance of Ms Sakr’s state of mind, on the one hand, and Ms Sakr’s stated intention to appeal against the first judgment, on the other. (The ABC argued that such an appeal was necessary only in circumstances where Ms Sakr agreed with the ABC’s analysis as to the effect of the decision of 12 February 2015 but disagreed with the decision itself.)

32. It was in the above context that the applications now before the Court were brought. The reason I have set out the procedural history of the dispute as to the pleaded and re-pleaded imputations in some detail is because it is relevant to the question whether this Court should grant leave to appeal/cross-appeal from the respective decisions.

Applications for leave to appeal/cross-appeal

33. Ms Sakr now seeks leave to appeal from that part of her Honour’s first judgment striking out imputation 4(a) as initially pleaded. She requires an extension of time for the filing of her application for leave to appeal. The ABC in turn has filed a summons seeking leave to cross-appeal from that part of her Honour’s first judgment relating to imputations 4(b) and 4(c).

34. The ABC, has also, in separate proceedings in this Court, sought leave to appeal from that part of the primary judge’s second judgment, namely as to the capacity of the matter complained of to give rise to the re-pleaded imputation 4(a).

35. It is well known that appellate courts exercise particular caution in reviewing interlocutory rulings in matters of practice and procedure and that the task facing an applicant challenging a discretionary ruling is a difficult one (see Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [73] and the authorities there cited). This was recently re-affirmed in The Federal Capital Press of Australia Pty Ltd v Balzola [2015] NSWCA 285. Ordinarily, it is appropriate to grant leave from a discretionary ruling of the kind now sought to be challenged only where there is an issue of principle involved or an injustice going beyond what is reasonably arguable (see Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164, Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69). Those principles would tell against a grant of leave in respect of discretionary interlocutory rulings of the kind now challenged.

36. The present case is, however, complicated by the fact that the first judgment was not one on an application brought pursuant to UCPR r 28.2 whereas the second judgment was. What became apparent in the course of argument before this Court was that there is considerable scope for confusion between the parties as to the import of the first judgment in relation to imputation 4(a) as it has now been re-pleaded. In those circumstances, I am of the opinion that this Court should grant leave to Ms Sakr to appeal from the first judgment and, so that all the issues currently in dispute as to the pleaded imputations can be resolved, also to grant leave to the ABC to cross-appeal from that decision and to appeal from the second judgment.

First judgment

37. In relation to imputation 4(a), as originally pleaded, her Honour said (at [7] – [9]):

…The matter complained of does not assert that the plaintiff is a supporter of the brutality of the Assad regime; to the contrary, she refuses to admit that brutality is occurring, in that she does not accept that chemical weapons are being used and blames foreign invaders, not the Assad regime, for what is occurring (lines 25 – 40).

While an imputation of supporting the regime (which is portrayed as brutal) is conveyed, an imputation of supporting the brutality must fail in limine.

This imputation is struck out with leave to re-plead, to enable the plaintiff to identify the sting more accurately.

38. Her Honour dealt with the objections raised in relation to the use of the words “support” and “brutality” in the context of imputations 4(b) and 4(c). In relation to those imputations, her Honour noted that there was objection to the use of the word “brutal” in imputations 4(b) and (c), to the use of the word “protects” in imputation 4(b), and to the use of the word “supports” in imputation 4(c).

39. Her Honour addressed her reasons in relation to the form objection at [12] – [14]. The ABC complains that its objection to the capacity of the matter complained of to convey the respective imputations was not dealt with by her Honour.

40. Her Honour did not accept that the terms in which imputations 4(b) and 4(c) were pleaded were so ambiguous and general that ABC did not know the case it had to meet (for the reasons explained by Hutley JA in Hepburn v TCN Channel Nine Pty Limited [1983] 2 NSWLR 682 at 688B–C). Her Honour considered that the meaning of “support” had been sufficiently explained by senior counsel for Ms Sakr, Mr Molomby SC. There, it seems her Honour was referring to the debate that had occurred as to the meaning of imputation 4(a), since her Honour did not need to hear from Mr Molomby as to the meaning of “support” in the context of imputation 4(c) (see T 18.44).

41. Her Honour seems to have understood the imputation in 4(c) to refer to the “support” for the regime that Ms Sakr offered simply by reference to her being a member of “Hands off Syria” (see T 17.5).

42. At [15] her Honour said that the objection to the use of the word “protects” was “similarly without foundation”. By reference to the transcript it appears that her Honour read this as meaning “protects from criticism” i.e., by denying or refusing to admit the use of chemical weapons (see T 7.32). Mr Molomby did not cavil with that proposition but broadened it to include “protects from political disadvantage”.

43. Her Honour did not deal with the ABC’s submission that imputations 4(a) and 4(b) did not differ in substance, on the stated understanding that this had been abandoned when it was pointed out by Mr Molomby that imputation 4(a) was an imputation of condition and imputation 4(b) was an imputation of act. In other words, her Honour understood Mr Molomby to be indicating that the pleaded imputation was not of an intention to “protect” the regime from criticism (or disadvantage) but that Ms Sakr had so acted.

44. In relation to imputation 4(d), her Honour (at [18]) considered the difficulty with this imputation to be the importation of a concept that Ms Sakr “tried to” create favourable propaganda for the brutal Assad regime, when the matter complained of stated in unambiguous terms that the story in which she participated was “powerful propaganda” and that her participation in the delegation had resulted in “useful propaganda”.

45. Her Honour noted at [19] that Mr Molomby had explained the use of “tried to” as being that Ms Sakr was not the principal actor and had submitted that the disapproving tones of the journalist and the reference as to widespread criticisms of these activities conveyed the impression that the attempts at propaganda had been unsuccessful. Her Honour (at [20]) expressed the opinion that the imputation of creating propaganda did not require that it be received with approval and that the nature of propaganda was such that in fact the reverse is often the case. Imputation 4(d) was struck out with leave to re-plead. (There is no challenge in relation to the ruling on this imputation.)

Second judgment

46. In relation to the re-pleaded imputation 4(a), her Honour noted (at [1]) that the ABC’s objection to the word “willingly” in imputation 4(a) was both as to capacity and form.

47. His Honour noted that the ABC’s submission as to capacity was that the imputation could not be conveyed because it was strained and unreasonable, and that Mr Molomby had submitted that the whole tenor of the matter complained of was to the effect that Ms Sakr was “an active, indeed ardent, supporter of the regime, rather than doing so reluctantly or out of concern for the safety of family members”, and that the sting of the libel was that she was supporting the regime willingly and not because she had to do so in order to see her father again ([2]).

48. Her Honour concluded (at [5]) that, on the test in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 (at [135]-[138]) (that capacity determination is an exercise in generosity not parsimony), Ms Sakr had no difficulty in establishing that the matter complained of conveyed the imputation of her willing support for the Assad regime. As to form, her Honour considered that the word “willingly” had a clear English meaning.

49. Accordingly, other than to indicate the amendments that her Honour considered should be made to the re-pleaded imputation 4(a) (as noted earlier at [25] above), her Honour did not uphold the objections that had been made by the ABC to the second draft amended statement of claim.

Determination

Implementation 4(a) as originally pleaded (Ms Sakr’s appeal)

50. The ABC does not contest the proposition that the matter complained of clearly portrays Ms Sakr as a supporter of the Assad regime. However, it contends that the matter complained of is not capable of suggesting to the ordinary reasonable viewer that Ms Sakr’s support for the regime is because of its brutality. It is said that this is inconsistent with the portrayal of Ms Sakr as someone who sees the war in Syria as a foreign invasion rather than a civil war.

51. Ms Sakr’s complaint is that the matter complained of conveys that she is a supporter of the regime with full awareness of its brutality and in that sense the imputation arises that she is a supporter of the brutality of the regime. This imputation is said to arise, in essence, from two things.

52. First, that the only aspect of the regime referred to in the matter complained of is its brutality. While it is accepted in Mr Molomby’s written submissions that a viewer would “no doubt recognise that the regime necessarily has other aspects”, it is submitted that there is no basis for a viewer to conclude that any of those other aspects forms the basis for Ms Sakr’s support for the regime. It is submitted that a viewer would need only a moment’s reflection to realise that Ms Sakr’s presence in the Media Watch story could be justified only if she were to be regarded as a supporter of the brutality of the Assad regime.

53. Second, that the phrase “refuses to admit” imports a knowing denial of reality. It is submitted that the publication conveys that Media Watch does not accept her denial and thereby that it implies that Ms Sakr is well aware of the regime’s brutality. As to this, Ms Sakr submits that her Honour’s statement (at [7] – see [37] above) that Ms Sakr “does not accept” that chemical weapons are being used is a misreading of the publication because the matter complained of says that she “refuses to admit” that President Assad has used chemical weapons.

54. It is submitted that any reasonable viewer would understand the matter complained of as implying that Ms Sakr, as a leading light in Hands Off Syria, was well aware of what was going on in Syria as alleged by the ABC and was supporting the regime with that knowledge.

55. As to the first of those matters, it does not follow from the emphasis placed in the matter complained of as to the brutality of the regime that Ms Sakr’s presence in the story could be justified only if she were a supporter of that brutality. The focus of the criticism in the matter complained of is not Ms Sakr or her reason for travelling to Syria or her participation in the delegation to visit President Assad. The story is clearly directed at the perceived incompleteness or lack of balance in the picture painted by the Good Weekend article.

56. As to the second of those matters, the criticism made of her Honour’s statement that Ms Sakr “does not accept” that chemical weapons are being used is in my opinion misplaced. Her Honour was explaining why she did not accept that the matter complained of conveyed support by Ms Sakr for the brutality of the regime. The reason her Honour gave was that the article stated that Ms Sakr refused to accept that brutality was occurring, in the sense that Ms Sakr “did not accept” that chemical weapons were being used and blamed foreign fighters for what was happening. In other words, her Honour was treating the use of chemical weapons as an aspect of the brutality of the regime, not as something the article suggested that Ms Sakr supported. The complaint by Ms Sakr as to a misreading of the matter complained of in this context is an exercise in semantics that goes nowhere.

57. The substance of the complaint by Ms Sakr in relation to her Honour’s ruling on imputation 4(a) is that she maintains that the reference to a “refusal to admit” the allegation that the Assad regime has used chemical weapons imports a “knowing” denial of such an allegation.

58. It is clear from the debate in this Court that the sting perceived in the imputation that Ms Sakr says arises from the matter complained of is not that she supported a regime that is brutal but, rather, that she supported the regime knowing of its brutality (and presumably in that case supporting it either because of or despite its brutality). At T 8.25, Mr Molomby made clear that what Ms Sakr wants to allege is that the material conveyed an imputation that Ms Sakr supported the regime knowing of its brutality.

59. The language used in the matter complained of, namely that of a “refusal to admit”, is not relevantly different to the language of denial. A denial of a matter or a refusal to admit a matter does not necessarily say anything about the state of knowledge of the person as to that matter. In particular, it does not necessarily convey that the person denying or refusing to admit an allegation knows that the allegation is true, but nonetheless denies it or refuses to admit it.

60. In my opinion there is nothing in the matter complained of that suggests that Ms Sakr has any knowledge of the Assad regime’s use of chemical weapons. Her refusal to admit that the regime was using chemical weapons might well be characterised as shutting her eyes to the evidence or perhaps wilfully refusing to accept the correctness of the UN report referred to in the matter complained of, assuming that she had any knowledge of that report. But the matter complained of cannot be understood as conveying that she knew that the allegations that the Assad regime used chemical weapons were true, yet refused to admit that they were true.

61. Even if the matter complained of did convey that Ms Sakr had knowledge of the truth of the allegation she was denying (or refusing to admit), it still would not convey the imputation that she supports the regime because of its use of chemical weapons or brutality (or, as the imputation was initially pleaded, that she supports the brutality of the regime). It is perfectly possible to support someone or something notwithstanding disapproval of some aspect of that person’s conduct or behaviour or some aspect of that thing.

62. In any event, the force of her Honour’s conclusion that the matter complained of is not capable of conveying the imputation (that Ms Sakr supports the brutality of the regime) is that the story clearly portrays Ms Sakr as someone who blames foreign invaders for what is occurring in Syria and the destruction of the country of her parents. That is inconsistent with a belief in, acceptance of, or support for brutality occurring at the hands of the Assad regime itself.

63. Her Honour did not err in concluding that, even viewed with the generosity accorded in the context of determining the capacity of an imputation to arise, imputation 4(a) as initially pleaded was not capable of arising. Ms Sakr’s appeal should therefore be dismissed.

Imputation 4(a) as re-pleaded (ABC’s appeal from second judgment)

64. The ABC submits that to the extent that the re-pleaded imputation 4(a) is understood to include the notion of support for the brutality of the Assad regime (as opposed to support for the regime, which is described as a brutal regime) her Honour erred in rejecting its objection to the capacity of that imputation to arise. The ABC argues that the word “willingly” in the phrase “willingly backs a brutal regime” trespasses on the first judgment since it denotes a preparedness to accept the brutal nature of the regime.

65. It is submitted that it is clear from [5] of the second judgment, that her Honour rejected the objection on the basis that she did not understand the imputation as re-cast to include the notion of support for the brutality of the Assad regime.

66. It is thus submitted by the ABC that the only way to reconcile the re-pleaded imputation 4(a) with the respective judgments is to understand its meaning to be confined such that, for the purpose of a defence of justification, the ABC need only prove that Ms Sakr supports the Assad regime as distinct from proving that she supports the brutality of that regime. I agree.

67. The argument during oral submissions in this Court clearly exposed the inconsistency between the reformulated imputation, as Mr Molomby seeks to argue it, and the basis on which the initial imputation was (in my opinion correctly) struck out. At T 5.42, Mr Molomby conceded that “on one view” there was not a significant difference between the struck out imputation and the re-pleaded one. He intimated that, but for the difficulty raised by the ABC in relation to the reconciliation of the amended imputation with the first judgment, there might have been no need for any appeal from the first judgment. Again, at T 6.42, Mr Molomby accepted that the two imputations, shorn of the context and history of the case and the arguments that had been made, were not materially different.

68. Relevantly, at T 7, Mr Molomby agreed that the meaning of the word “willingly” in the re-pleaded imputation was that Ms Sakr knowingly supported a brutal regime, i.e., supported it knowing that it was brutal. It is clear that Ms Sakr still wishes to argue that the matter complained of was defamatory of her because it conveys that she was supporting the brutality of the regime.

64. While the word “willingly” does not in my opinion convey any imputation as to the knowledge Ms Sakr has of the brutality or otherwise of the regime (as opposed to conveying that she had not in some fashion been forced to support the regime), the manner in which Mr Molomby explained the argument that Ms Sakr wishes to make as to the re-pleaded imputation clearly trespasses on the ruling made in the first judgment. In those circumstances, the re-pleaded imputation is apt to give rise to confusion. The ABC’s complaint as to the use of the word “willingly” should therefore be upheld.

Imputations 4(b) and (c) (ABC’s cross-appeal)

70. As to imputation 4(b), it is submitted by the ABC that the use of the word “protects” is impermissibly imprecise since it begs the question “protects from what” and it is unclear as to what is said to constitute the protection that Ms Sakr is said to provide.

71. It is submitted further that the imputation simply seeks to reformulate imputation 4(a) by use of the words “protects”. It is submitted that the refusal to admit the use of chemical weapons conveys a broad impression of support rather than protection and that speaking and making arguments in favour of President Assad does not amount to “protection”. Further it is submitted that the imputation depends on Ms Sakr’s position being aligned to Hands Off Syria in which she is said to be a leading light and that the case can rise no higher than what is conveyed about its position.

72. Ms Sakr argues that there is no imprecision in the use of the word “protects” and that what it refers to, in effect, is the protection of the regime from the criticism and condemnation which would follow if the use of chemical weapons were admitted. In the course of argument before the primary judge, Mr Molomby expanded this to suggest that it was more than protection from criticism, it was essentially protection from “political disadvantage”. Mr Molomby submits that the concept of support for the regime (as referred to in 4(a) or 4(c)) is different from the concept of protection in imputation 4(b) which focusses on a specific example of the conduct “intended to protect”.

73. The ABC’s response to that submission is that even if it is accepted that imputation 4(b) constitutes a protection from the criticism and condemnation which would follow if the use of chemical weapons were admitted, imputation 4(b) is incapable of arising since, at most, the matter complained of might be capable of conveying that Ms Sakr intended, or sought, to protect the Assad regime from criticism but cannot go so far as the notion of actual protection.

74. In relation to imputation 4(c) it is said by the ABC that it suffers from two form problems: first, the term “special favours” is imprecise and, second, the word “support” is ambiguous. As to capacity, it is said that the imputation is incapable of arising because nowhere in the matter complained of is it alleged that there was any reciprocal arrangement between Ms Sakr and the Assad regime such as to give rise to a notion of special favours in return for or in exchange for support. It is noted that the rallies in which Ms Sakr participated were well before her trip to Syria and that there was no suggestion that Ms Sakr’s participation in the rallies was the product of an arrangement that she had reached in order to obtain special favours when she later travelled to Syria.

75. For Ms Sakr, it is submitted that, in the context of the matter complained of, there was no doubt what the special favours were and there is no ambiguity in the use of the word “support”. Ms Sakr submits that the imputation does not require that there be a reciprocal arrangement between her and the Assad regime, rather the imputation is to be understood in the context that Ms Sakr supported the regime and then when she later went to Syria she accepted favours offered in return.

76. The ABC submits that imputation 4(c) as clarified in Ms Sakr’s consolidated submissions (at [10]) does not differ in substance from imputation 4(a) since the sting of imputation 4(c), as clarified, is that Ms Sakr is a supporter of the regime and nothing is added to that sting by the reference to her having received special favours from the regime about some arrangement.

77. Her Honour had understood the complaint that the imputations in 4(b) and 4(c) did not differ in substance from 4(a) had been abandoned but that complaint seems again to be raised on the present application. Whether imputations differ in substance may be tested by reference to what would be required to prove justification to which imputation or by asking what may be proved by way of justification to each imputation (see Singleton v John Fairfax & Sons Ltd Supreme Court (NSW), Hunt J 20 February 1980, unreported; Toben v Milne [2014] NSWCA 200 at [12] – [13]), though those tests are no more than guidance.

78. Considering the imputations in terms of the publication as a whole, imputations 4(b) and (c) focus on particular aspects of the “protection” or “support” for the regime by Ms Sakr. Imputation 4(a) on the other hand speaks in general terms of support for the regime.

79. There is obviously the possibility of overlap since, to the extent that imputation 4(a) is more general, it can be accepted that if imputation 4(b) or 4(c) were made out the conduct the subject of those imputations might also fall within imputation 4(a). Nevertheless, a person might “back” or support a regime without supporting all aspects of it or without doing so in a particular way.

80. In those circumstances, her Honour did not err in refusing to strike out imputations 4(b) and (c) on the basis that they were not different in substance from imputation 4(a). Nor, in my opinion, did her Honour err in concluding that imputations 4(b) and (c) were capable of arising from the matter complained of. However, imputations must be stated with sufficient precision to avoid the likelihood of confusion as to import or meaning of the imputation (Singleton v Ffrench (1986) 5 NSWLR 425; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158.

81. In the present case, imputation 4(b) needs, as her Honour implicitly recognised in the course of discussion when ruling in February on the first round of objection to the imputations, to be clarified so as to identify the ambit of the imputation i.e., as to what is meant by “protects”. Although her Honour had indicated that there could be a notation to the effect that the imputation meant or could include protection from criticism, it is not clear from her Honour’s reasons whether such a notation has been made.

82. The clarification provided by Mr Molomby was that imputation 4(b) means “protects from criticism or from political disadvantage”. The latter, i.e., the suggestion that Ms Sakr’s conduct was either intended or designed to protect, or capable of protecting, the Assad regime from “political disadvantage”, even if capable of arising from the matter complained of, is too general in terms to be meaningful. The imputation that Ms Sakr’s conduct “protects” in the sense of either being intended or designed to protect, or capable of protecting, the regime from adverse criticism or political condemnation is in my opinion capable of arising from the matter complained of, though as noted at [43] above Mr Molomby seems to have argued that this was not an imputation of intention but that Ms Sakr had so acted.

83. There should be a direction that imputation 4(b) be amended to make clear that what is meant is to the effect that Ms Sakr, by refusing to admit that the regime uses chemical weapons, “protects” the regime from adverse criticism or political condemnation. It should also be made clear whether the imputation is as to Ms Sakr’s intent or that she has so acted.

84. As to imputation 4(c), as noted above in the course of argument it was made clear that Ms Sakr does not suggest that the imputation conveyed was that there had been any reciprocal arrangement in advance of her travel to Syria that she be provided with special favours in return for her support of the regime. Imputation 4(c) should therefore be amended to make clear that it is not contended that any such imputation is conveyed by the matter complained of.

85. While no error of the kind warranting appellate intervention has been disclosed in relation to the decision made not to strike out imputations 4(b) and 4(c), directions should be made for the amendment of the pleading as indicated above. Otherwise, the ABC’s appeal from the second judgment should be dismissed.

Costs

86. As the ABC has succeeded overall on the issues raised in relation to Ms Sakr’s appeal and its appeal from the second judgment, it should have its costs in relation to those appeals. As to the ABC’s cross-appeal from the first judgment, there has been a measure of success on its part but in my opinion the costs should be costs in the cause.

Orders

87. For the reasons set out above I propose the following orders:

1. Extend to 7 May 2015 the time for the filing of Ms Sakr’s summons for leave to appeal from the decision of the primary judge to strike out imputation 4(a) in the initial statement of claim, grant leave to appeal and dismiss the appeal.

2. Grant the ABC leave to cross-appeal from the decision of the primary judge not to strike out imputations 4(b) and (c) in the initial statement of claim and to appeal from the decision of the primary judge not to strike out imputation 4(a) as re-pleaded in the draft second amended statement of claim.

3. Strike out “willingly” from imputation 4(a) in the third amended statement of claim and direct that Ms Sakr file a fourth amended statement of claim amending imputations 4(b) and (c) in accordance with these reasons.

4. Otherwise dismiss the ABC’s cross-appeal from the decision of the primary judge in relation to imputations 4(b) and (c) in the initial statement of claim.

5. Order Ms Sakr to pay the ABC’s costs both of her appeal and of its appeal from the second judgment.

6. Order that the costs of the ABC’s cross-appeal from the first judgment be costs in the cause.

88. SACKVILLE AJA: I agree with the orders proposed by Ward JA and with her Honour’s reasons.

89. The rather convoluted procedural history of these proceedings is largely attributable to the attempt by the applicant (Ms Sakr) to circumvent the primary Judge’ ruling on 12 February 2015 that imputation 4(a) should be struck out. The amended statement of claim filed on 15 February 2015 essentially repeated imputation 4(a), albeit by using slightly different language. The appropriate course if the applicant wished to challenge her Honour’s original ruling was to seek leave to appeal from that ruling rather than repeat the substance of the struck out pleading in an amended statement of claim.

90. In my view, the matter complained of cannot be understood as conveying an imputation that the applicant was a supporter of the brutality perpetrated by the Assad regime in Syria. The thrust of the program, so far as it deals with the applicant, is that she cannot or will not see the truth of what is alleged against the regime, namely that it has committed war crimes and gross violations of human rights.

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Decision last updated: 02 October 2015