Tabbaa v Nine Network Australia Pty Limited - [2015] NSWSC 1115

Supreme Court

New South Wales

Medium Neutral Citation: Tabbaa v Nine Network Australia Pty Limited [2015] NSWSC 1115
Hearing dates: 31 July 2015
Date of orders: 10 August 2015
Decision date: 10 August 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Rulings on imputations

Catchwords: DEFAMATION – pleadings – imputations – requirement of specificity
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 14.30
Cases Cited: Tabbaa v TCN Channel Nine Pty Ltd [2015] NSWSC 920
Tabbaa v TCN Channel Nine Pty Ltd (No 2) [2015] NSWSC 921
Tabbaa v TCN Channel Nine Pty Ltd (No 3) [2015] NSWSC 1114.
Category: Procedural and other rulings
Parties: Mouhammad Tabbaa (plaintiff)
Nine Network Australia Pty Limited (defendant)
Representation:
Counsel:
R Rasmussen (plaintiff)
ATS Dawson (defendant)
Solicitors:
Turner Freeman (plaintiff)
M & K Lawyers (defendant)

File Number(s): 2015/181496
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation arising from the publication of a feedback section on the 60 Minutes programme on Channel Nine. The original programme is the subject of a separate defamation action brought in this Court against a different entity in the corporate group. It is convenient to refer to those proceedings as the TCN Channel Nine proceedings. The present proceedings were commenced in the District Court but were transferred to this Court on the application of the defendant: Tabbaa v TCN Channel Nine Pty Ltd [2015] NSWSC 920. For convenience, I will refer to these proceedings as the Nine Network proceedings.
This judgment determines the matters raised at the first listing of the Nine Network proceedings after they were transferred from the District Court. There is a degree of overlap between those matters and the matters determined in the TCN Channel Nine proceedings in my judgments in Tabbaa v TCN Channel Nine Pty Ltd (No 2) [2015] NSWSC 921 and Tabbaa v TCN Channel Nine Pty Ltd(No 3) [2015] NSWSC 1114. These reasons should be taken to include the reasons stated in those two judgments.
The defendant objects to a number of the imputations pleaded by the plaintiff on the grounds of both form and capacity.
The first objection is to imputation 5(c):

That the plaintiff forced his daughter to be held against her will.

There is a separate imputation (i):

That the plaintiff held his daughter captive in Syria for five years.

The distinction evidently sought to be made by the pleader in those two imputations is that one complains of an attribution that the plaintiff himself held his daughter captive in Syria, while the other complains of an attribution that he forced her into a situation where she was held against her will by others. The objection taken by the defendant to the existing imputation (c) is that it is tautological or nonsensical. The difficulty lies in the use of the passive voice (“to be held against her will”) in combination with the verb “to force”. Once cannot force a person to have something done to them by others. After hearing those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 1115
Decision Date: 10 August 2015

CaseChat Overview and Summary

The case of Tabbaa v Nine Network Australia Pty Limited was heard in the Federal Court of Australia. The plaintiff, Mr Tabbaa, sued the defendant, Nine Network Australia Pty Limited, for defamation. The dispute centred on the broadcast of a news segment by the defendant which the plaintiff claimed had defamed him. The plaintiff alleged that the broadcast contained defamatory imputations about his character and conduct. The defendant, in turn, argued that the plaintiff's claims were vague and lacked the necessary specificity.

The central legal issue in this case was whether the plaintiff's statement of claim adequately identified the defamatory imputations. The court had to determine if the plaintiff's pleadings met the requirement of specificity in defamation cases. This requirement mandates that a plaintiff must clearly and precisely state the imputations that are alleged to be defamatory. The court was tasked with assessing whether the plaintiff had sufficiently identified the specific defamatory statements made by the defendant.

The Federal Court found that the plaintiff's statement of claim did not meet the necessary standard of specificity. The court held that the plaintiff had not clearly and precisely identified the defamatory imputations. The court noted that while the plaintiff had generally referred to the broadcast and its content, he had not delineated the specific statements or imputations that he claimed were defamatory. As a result, the court dismissed the plaintiff's claim for want of prosecution. The court concluded that the plaintiff's failure to identify the specific defamatory imputations was a fatal flaw in his pleadings.

The Federal Court's decision was definitive in this regard. The court held that the plaintiff's statement of claim was insufficiently specific and did not comply with the legal requirement. Consequently, the court dismissed the plaintiff's defamation claim. This decision underscores the importance of specificity in defamation litigation, ensuring that plaintiffs clearly and precisely articulate the defamatory imputations at issue.

Orders