Sakr v Australian Broadcasting Corporation (No. 2)
[2015] NSWDC 34
•26 February 2015
|
New South Wales |
Case Name: | Sakr v Australian Broadcasting Corporation (No. 2) |
Medium Neutral Citation: | [2015] NSWDC 34 |
Hearing Date(s): | 26 February 2015 |
Date of Orders: | 26 February 2015 |
Decision Date: | 26 February 2015 |
Jurisdiction: | Civil |
Before: | Gibson DCJ |
Decision: | (1) Pursuant to rr 14.28 and 28.2 Uniform Civil Procedure Rules 2005 (NSW), strike out imputation 4(a) but grant leave to replead “the brutal Assad regime in Syria” in lieu of “a brutal regime in Syria”. |
Catchwords: | TORT – defamation – imputations – form and capacity – “willingly” |
Cases Cited: | Charleston v News Group Newspapers Ltd [1995] 2 AC 65 |
Category: | Procedural and other rulings |
Parties: | Plaintiff: Reme Sakr |
Representation: | Counsel: |
File Number(s): | 2014/316552 |
Publication Restriction: | None |
JUDGMENT
The defendant has asked for reasons for my refusal to strike out the word “willingly” in imputation 4(a), on the basis of objections as to capacity and form. Imputation 4(a) is currently pleaded as follows:
“She willingly backs a brutal regime in Syria, which is led by a war criminal and has committed gross violations of human rights.”
As to capacity, Mr Molomby SC submits that the whole tenor of the matter complained of is to the effect that the plaintiff was an active, indeed ardent, supporter of the regime, rather than doing so reluctantly or out of concern for the safety of family members. She was “a leading light” in Hands Off Syria, “one of the loudest voices” at one rally and the organiser of another, posting clips on YouTube and taking part in delegations. The sting of the libel was that she was supporting the regime willingly, not because she had to do so in order to see her father again.
Mr Lewis submitted, as to capacity, that the imputation could not be conveyed because it was strained and unreasonable.
Words such as “willingly” perform an important function in encapsulating the defamatory sting. “Willingly” in fact has a long history of use in imputations: Jackson v TCN Channel 9 Pty Ltd [2002] NSWSC 1229 at [1]; Jackson v TCN Channel 9 Pty Ltd [2001] NSWCA 108; Kenny v Australian Broadcasting Corporation [2014] NSWSC 190 at [23], citing Charleston v News Group Newspapers Ltd [1995] 2 AC 65. In Hynde v Nationwide News Pty Ltd [2011] NSWSC 633 at [23] – [33] McCallum J held, in relation to a contextual imputation the plaintiff “was willing” to lend money to persons whom he believed were drug dealers was capable of arising (the imputation was struck out because it was not capable of arising at the same time as the plaintiff’s imputations). No submission was made that it was defective in form.
Capacity determination is “an exercise in generosity not parsimony” (Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[138]). On that test, given the portions of the matter complained of referred to by Mr Molomby SC, the plaintiff has no difficulty in establishing that the matter complained of conveys an imputation of her willing support for the Assad regime.
Mr Lewis also submitted that the word “willingly” was defective in form as it was ambiguous.
As to form, Simpson J in Griffith v Australian Broadcasting Corporation [2002] NSWSC 86 at [104] declined to strike out an imputation that the plaintiff “willingly” allowed himself to be used as the face for an organisation he knew to be dangerous, although the form objection appears to have been principally aimed at the word “dangerous” (see also Packer v John Fairfax Publications Pty Ltd [2006] NSWSC 940 at [28], where “willing to” is referred to with apparent approval).
Mr Lewis did not identify the ambiguity beyond indicating that the defendant did not know the case to meet if justification was pleaded. The truth of the portions of the publication identified by Mr Molomby SC as supporting capacity would be matters which, if appropriately particularised, be of relevance. The defendant is not, of course, limited to the matter complained of in this regard.
I note the well-known maxim in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 that practical justice rather than philology should prevail in relation to the form of imputations. However, the practice of asserting words long accepted by the courts as having a clear English meaning are, for some unspecified reason, ambiguous in meaning and therefore not permissible in an imputation, has no basis in philology.
ORDERS
(1)Pursuant to rr 14.28 and 28.2 Uniform Civil Procedure Rules 2005 (NSW), strike out imputation 4(a) but grant leave to replead “the brutal Assad regime in Syria” in lieu of “a brutal regime in Syria”.
(2)Strike out the word “deliberately” from imputation 4(d).
(3)Grant leave to the plaintiff to file a Third Amended Statement of Claim in 7 days incorporating these amendments and the amendments agreed to by the plaintiff as set out in the draft “Second Amended Statement of Claim” handed up in court today.
(4)The plaintiff is to pay the defendant’s costs.
(5)Note – Plaintiff does not require reasons for this ruling, but Mr Lewis requires reasons for the word “willingly” in imputation 4(a), pursuant to rr 14.28 and 28.2 Uniform Civil Procedure Rules 2005 (NSW).
(6)The defendant to file Defence in 28 days thereafter.
(7)Matter stood over for further directions to Thursday 16 April 2015 at 9:30am.
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Amendments
16 April 2015 - Paragraph 6 - Typographical error
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