Tabbaa v TCN Channel Nine Pty Ltd - [2015] NSWSC 920

Supreme Court

New South Wales

Medium Neutral Citation: Tabbaa v TCN Channel Nine Pty Ltd [2015] NSWSC 920
Hearing dates: 10 July 2015
Date of orders: 14 July 2015
Decision date: 14 July 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Pursuant to r 6.1 of the Uniform Civil Procedure Rules, leave granted to Nine Network Australia Pty Ltd to move on the notice of motion dated 8 July 2015 filed in proceedings 2015/79981 in the Supreme Court of New South Wales; pursuant to s 140 of the Civil Procedure Act, proceedings 15/181496 in the District Court of New South Wales between Mouhammad Tabbaa and Nine Network Australia Pty Ltd transferred to this Court; that those proceedings be case managed together with proceedings 2015/79981 between Mouhammad Tabbaa and TCN Channel Nine Pty Ltd in this Court.

Catchwords: PROCEDURE – civil – application that District Court proceedings be transferred to this Court
Legislation Cited: Civil Procedure Act 2005 (NSW); ss 140, 146
Defamation Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW); r 6.1
Cases Cited: Ryner Pty Ltd v Roller [2007] NSWSC 372
Trilogy Corporate Solutions v Fitzroy Shop Fitting and Building Pty Ltd [2006] NSWSC 1026
Category: Procedural and other rulings
Parties: Mouhammad Tabbaa (plaintiff)
TCN Channel Nine Pty Ltd (defendant)
Nine Network Australia Pty Ltd (applicant)
Representation:
Counsel:
R Rasmussen (plaintiff)
ATS Dawson (defendant, applicant)
Solicitors:
Turner Freeman (plaintiff)
M & K Lawyers (defendant, applicant)

File Number(s): 2015/79981
Publication restriction: None

Judgment

HER HONOUR: On 29 June 2014, the 60 Minutes programme on Channel Nine television broadcast a segment concerning an alleged forced marriage. The broadcast featured the story a woman who says that, at the age of 13, she was tricked by members of her family into leaving Australia on the pretence of a holiday in Egypt and then taken by her father against her will to live with relatives in Syria. She says that in Syria she was told that she was to marry her cousin, a man many years her senior. Although the girl is referred to by a pseudonym during the broadcast, there is no attempt to conceal her visual identity and the programme includes footage of her father.
On 16 March 2015, the father, Mr Mouhammad Tabbaa, commenced these proceedings for defamation in respect of the broadcast on 60 Minutes, its posting on the 60 Minutes website and a re-publication of the same broadcast in December 2014. At the time the proceedings were commenced, the plaintiff was representing himself but the statement of claim appears to have been prepared with the benefit of legal advice. The defendant is TCN Channel Nine Pty Ltd, which is sued on the basis that it “published a television program 60 Minutes and the 60 Minutes website”.
On 22 May 2015, Mr Tabbaa filed a notice stating that he had appointed Mr Gardiman of Turner Freeman to act as his solicitor in the proceedings.
On 19 June 2015, Mr Tabbaa commenced separate proceedings in the District Court…

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 920
Decision Date: 14 July 2015

CaseChat Overview and Summary

The applicant, Tabbaa, sought to transfer proceedings from the District Court to the Supreme Court, contesting the decision of the District Court to dismiss an application for an interlocutory injunction against the respondent, TCN Channel Nine Pty Ltd. The dispute involved an allegation of defamation, where Tabbaa claimed that the respondent's publication of certain statements caused harm to his reputation and business. The Supreme Court was required to determine whether the case was appropriate for transfer, considering the matters of complexity, the need for a jury, and the availability of special jurisdiction in the Supreme Court.

The legal issues before the court were whether the Supreme Court had the requisite jurisdiction to transfer the case and whether the case was suitable for transfer due to its complexity and the need for a jury. The court considered the statutory provisions under the Supreme Court Act 1986 (NSW) which allow for the transfer of civil proceedings to the Supreme Court, and whether the case met the criteria for such a transfer. The court also examined the nature of the claims and the evidence required to determine whether the case was one that would benefit from being heard by a jury.

The Supreme Court found that the District Court had incorrectly determined that it did not have the requisite jurisdiction to transfer the matter. The court held that the case presented a complex defamation claim with significant reputational and financial implications for the applicant. The court found that the case warranted transfer to the Supreme Court due to its complexity, the need for a jury, and the special jurisdiction of the Supreme Court in defamation cases. Consequently, the application for transfer was granted, and the proceedings were transferred to the Supreme Court. The court issued an order transferring the matter to the Supreme Court and setting a date for the hearing of the interlocutory application.

Orders