Tawhidi v Awad; Muslimovic v Tawhidi; Awad v Tawhidi
[2020] VSC 847
•21 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2020 00640
| IMAM MOHAMMAD TAWHIDI | Plaintiff |
| v | |
| MOUSTAFA AWAD | Defendant |
S ECI 2020 03708
| JASNA MUSLIMOVIC | Plaintiff |
| v | |
| IMAM MOHAMMED TAWHIDI | Defendant |
S ECI 2020 03715
| MOUSTAFA AWAD | Plaintiff |
| v | |
| IMAM MOHAMMED TAWHIDI | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 December 2020 |
DATE OF JUDGMENT: | 21 December 20202 |
CASE MAY BE CITED AS: | Tawhidi v Awad; Muslimovic v Tawhidi; Awad v Tawhidi |
MEDIUM NEUTRAL CITATION: | [2020] VSC 847 |
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DEFAMATION – Application by plaintiff for leave to file and serve a further amended statement of claim – Whether pleaded imputations conveyed by matters published – Whether claim is time barred pursuant to s 5(1AAA) of the Limitation of Actions Act 1958 (Vic) – Application by defendant for summary dismissal pursuant to ss 62 and 63 of the Civil Procedure Act – Application by defendant to strike out statement of claim pursuant to Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Whether vulgar abuse can constitute defamatory matter – Bennette v Cohen (2005) 64 NSWLR 81; Berkoff v Burchill [1996] 4 All ER 1008 referred to – Whether statutory defence of triviality established – Defamation Act 2005 (Vic) s 33 – Smith v Lucht [2017] 2 Qd R 489 referred to.
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S ECI 2020 00640
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Castelan | Corrs Chambers Westgarth |
| For the Defendant | Mr M Awad, solicitor | Malewska & Associates Lawyers |
S ECI 2020 03708
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Awad, solicitor | M Joseph & Associates Solicitors Pty Ltd |
| For the Defendant | Mr J Castelan | Corrs Chambers Westgarth |
S ECI 2020 03715
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Awad, solicitor | M Joseph & Associates Solicitors Pty Ltd |
| For the Defendant | Mr J Castelan | Corrs Chambers Westgarth |
HER HONOUR:
Introduction and background
These proceedings arise out of a confrontation on social media between Mr Moustafa Awad, a solicitor, and Imam Mohammed Tawhidi, a cleric and social commentator. Imam Tahwidi and his charitable foundation have a prominent social media presence, including a website, a Facebook page, a Twitter handle, and a You Tube channel.
On 11 February 2019, Imam Tawhidi, who was born in Iran, and describes himself as a faith leader within the Shia Muslim community, gave evidence before a Senate Inquiry into citizenship matters (‘Senate Inquiry”), where, according to his statement of claim, he stated, among other things:
(a) he called for social reforms within the Muslim community;
(b) he opposes Islamic terrorism and promotes peace;
(c) he advocated for, among other things, an annual test for a person granted Australia citizenship to ensure that they uphold Australian values, and do not hold the following views:
(i) that female genital mutilation is acceptable;
(ii) that being beaten by her husband is a blessing for a Muslim;
(iii) that polygamy is acceptable; and
(iv) that forcing a person’s thirteen year old daughter to marry her 31 cousin is acceptable.
Later that day, Mr Awad, who is an adherent of the Sunni Muslim faith, and the principal of a legal practice which, among other things, provides clients with advice regarding immigration law, posted on his Twitter account and on his Facebook page a link to a video of Imam Tawhidi giving evidence to the Senate Inquiry, along with the following remarks (‘first post’):
Lolllll … that bill[1] should include poisoning that c**t called Tawhidi … just perfect match with Poison Hanson![2]
[1]The purpose of the Senate Inquiry was, among other things, concerned with the Australian Government’s proposed Australian Citizenship Legislation Amendment (Strengthening the Commitments for Australian Citizenship and other Measures) Bill 2018.
[2]This is presumably a reference to Senator Pauline Hanson of Queensland.
On the following day, 12 February 2019, Mr Awad uploaded onto his Twitter account and/or Facebook page the following (‘second post’):
Since this post has angered a lot of people, hence posting it again loll … Tawhidi! I don’t wish you poisoned anymore, I wish you get kidnapped by ISIS and make fata[3] out of your head. loll.
[3]According to ‘Faatah’ is a ‘classic Egyptian favourite.’
Mr Awad’s ‘avatar’ on his Twitter account is a picture of himself in a dark jacket and a white jabot, thus identifying himself as a lawyer. On 11 February 2019, his Twitter account had 137 followers, and by the following day, he had 1,338 followers. However, he removed the first and second posts and deactivated his Twitter account on 12 February 2019
Imam Tawhidi, however, was not backward in coming forward. Between 12 February 2019 and 13 March 2020, Imam Tawhidi posted at least twenty statements and videos on Twitter and Facebook which were critical of and insulting to Mr Awad, and, to a much lesser extent, his wife, Ms Jasna Muslimovic, who is also a lawyer, and is employed by Mr Awad’s firm. At one stage, Mr Awad sought an intervention order against Imam Tawhidi, and Imam Tawhidi has made a complaint to the Legal Services Commissioner about Mr Awad’s conduct. It is not necessary for present purposes to traverse the full extent of the disputes between the parties.
On 10 February 2020, Imam Tawhidi issued a proceeding in this Court, claiming that Mr Awad had defamed him in the first post and the second post (‘Tawhidi proceeding’). On 11 February 2020, Mr Awad filed a proceeding in the County Court of Victoria (‘County Court’) claiming that Imam Tawhidi had defamed him in the material referred to above (‘Awad proceeding’). On 24 June 2020, Ms Muslimovic filed a separate proceeding in the County Court with respect to the materials published by Imam Tawhidi which referred to her (‘Muslimovic proceeding’). On or about 24 September 2020, the proceedings against Imam Tawhidi were transferred from the County Court to this Court.
Since that time, all three proceedings have been managed together. They have been listed for trial on 3 November 2021.
The proceedings
Prior to turning to the applications currently before me, I will briefly summarise the allegations in each of the proceedings.
In the Tawhidi proceeding, Imam Tawhidi alleged that the first post carried the following imputations:
(a) Imam Tawhidi is such a contemptible person that he deserves to be poisoned;
(b) Imam Tawhidi is a person who should not be treated seriously, in that his evidence before the Senate hearing was ridiculous; and
(c) in giving evidence before the Senate hearing, Imam Tawhidi acted as a traitor to all Muslims.
Imam Tawhidi alleged that the second post carried the following imputations:
(a) x Tawhidi is such a contemptible person that he deserves to be kidnapped by terrorists and murdered;
(b) Tawhidi is a person who should not be treated seriously, in that his evidence before the Senate hearing was ridiculous; and
(c) in giving evidence before the Senate hearing, Tawhidi has acted as a traitor to all Muslims.
Imam Tawhidi alleged that he is entitled to an award of aggravated damages, on the basis that the first and second posts were published in circumstances where Mr Awad:
(a) had no genuine belief in the truth of the words at the time they were published;
(b) published the words for the purpose of injuring Imam Tawhidi’s reputation, as can be inferred from the contents of the first post and the second post; and
(c) has refused to apologise to Imam Tawhidi.
Further, Imam Tawhidi claims damages for common law assault, on the basis that, by reason of publishing the first post and the second post:
(a) Mr Awad made an offer of force or violence;
(b) the conduct by Mr Awad was towards Imam Tawhidi, who reasonably believed that the threat would be carried out imminently; and
(c) the menace was accompanied by an intention on behalf of Mr Awad to raise in the mind of Imam Tawhidi that violence was about to be committed.
In his defence, Mr Awad:
(a) denied that Imam Tawhidi was a recognised imam, Sheikh or Muslim community leader;
(b) stated that Imam Tawhidi has a substantial social media presence, and is a public figure and media commentator who uses his self‑appointed status as an ‘Imam of Peace’, Muslim leader and Islamic scholar to:
(v) denigrate, attack, and make inflammatory comments regarding Muslims and Islam in Australia and generally; and
(vi) advocate for social and political action and reforms against Muslims and Islam;
(c) he provided details of publications, media interviews, and evidence given by Imam Tawhidi before the Senate Inquiry which are relied upon in support of the allegation in (b) above;
(d) insofar as Imam Tawhidi has advocated for social and political reform against Muslims and Islam, Mr Awad refers to:
(i) Imam Tawhidi’s call for government intervention to stop the building of mosques and Islamic community centres;
(ii) Imam Tawhidi’s call for the establishment of a government body to investigate the Australian Muslim community and ‘everything regarding the Muslim religion’;
(iii) Imam Tawhidi’s call to ban Islamic texts;
(iv) Imam Tawhidi’s call to ban Muslim immigration to Australia;
(v) Imam Tawhidi’s call to enforce stricter controls on Muslim immigrants taking up Australian citizenship; and
(vi) a post published on or about 13 April 2017 on the Tawhidi Facebook Page, in which Imam Tawhidi called for a ban on the Halal certification of certain foods, including chocolate Easter eggs, on the basis that such certification was a threat to the Australian way of life;
(e) stated that he was genuinely opposed to Imam Tawhidi’s publicly expressed views with respect to Islam, Muslims, and Sunni Muslims in particular;
(f) admitted that he published the first post, following which Imam Tawhidi republished the first post on his own Facebook page, following which he (Mr Awad) deleted the first post and deactivated his Twitter account;
(g) denied that the first post and the second post conveyed the imputations referred to in paragraphs 10 and 11 above, and denied that Imam Tawhidi’s reputation and standing was injured by the first and second posts;
(h) stated that, if Imam Tawhidi has been injured in his reputation and standing, any loss or damage is mitigated by his bad reputation as a public commentator on the Muslim community and the practice of Islam;
(i) said he (Mr Awad) apologised to Imam Tawhidi in the course of giving evidence at the Magistrates’ Court at Melbourne on 30 January 2020, during which Imam Tawhidi was present;
(j) said that he deleted the second post and deactivated his Twitter account on 12 February 2019;
(k) relied upon defences pursuant to s 33 of the Defamation Act 2005 (Vic) (‘Defamation Act’) (triviality), s 31(1) of the Defamation Act (honest opinion); and
(l) in relation to Imam Tawhidi’s claims for assault, denied that he made an offer of force or violence against Imam Tawhidi in the first and second posts, and said that his intention was merely to satirise Imam Tawhidi.
In his reply filed on 15 September 2020, Imam Tawhidi provided details of his memberships, qualifications, and affiliations, no doubt in response to Mr Awad’s allegations in his defence to the effect that Imam Tawhidi was a ‘self-appointed’ leader and commentator.
In the Awad proceeding, there have been a series of statements of claim which have been served upon the solicitors for Imam Tawhidi. The current version (for which leave to file and serve is required and is being sought by Mr Awad) bears the date of 23 June 2020, and alleges, in summary, as follows:
(a) he is a migrant from Egypt, who is, among other things, a Muslim lawyer who advocates for Muslim rights, refugee rights, and opposes racism and islamophobia;
(b) Imam Tawhidi’s Facebook page and Twitter account have 280,000 and 870,000 followers respectively;
(c) he annexed 21 separate publications which were said to convey a range of imputations, including, for example, the following imputations:
(vii) Awad is a Muslim extremist;
(viii) Awad is a terrorist;
(ix)Awad is reasonably suspected of being a terrorist by ASIO;
(x) Awad is part of a group of professionals who support terrorism and desire to see terrorists undertake/commit terrorist acts;
(xi)Awad is reasonably suspected of abusing his position as a migration agent by helping terrorists come to Australia; and
(xii) numerous other imputations in the same vein;
(d) he has suffered loss and damage as follows:
(i) general loss of reputation and integrity in both his professional and personal capacities;
(ii) the undermining of and prejudice to his role as a legal practitioner, entrepreneur and migration agent;
(iii) third parties posted further defamatory posts and tweets in respect of him in direct response to the publications made by Imam Tawhidi; and
(iv) his family members, work associates and colleagues have received threatening messages from unknown third parties as a result of the publications made by Imam Tawhidi; and
(e) he is entitled to aggravated damages and special damages.
No defence has yet been filed by Imam Tawhidi pending the determination of Mr Awad’s application to file and serve a further amended statement of claim.
In the Muslimovic proceeding, Ms Muslimovic filed an amended statement of claim on or about 24 June 2020. In her amended statement of claim, Ms Muslimovic alleged as follows:
(a) she was born in Bosnia Herzegovina, and is a Muslim lawyer who advocates for Muslim rights, refugee rights, and opposes racism and islamophobia;
(b) she made the same allegations concerning Imam Tawhidi’s profile and following as were made in the Awad proceeding;
(c) she referred to two publications which were said to be defamatory of her;
(d) the first publication was a website registered by Imam Tawhidi on 14 February 2020 (‘website’), a few days after the issue of the Tawhidi proceeding, with the URL which included statements which were meant and were understood to mean, among other things:
(v) she is the partner of a terrorist who has engaged in promoting violence, jihad, and terrorism;
(vi) by her assisting in the promotion of violence, jihad and terrorism, she has conducted herself in an unprofessional manner;
(vii) she knowingly assists in promotion of violence, jihad and terrorism; and
(viii) she condones the murder of innocent people by Islamic terrorists.
(e) the second publication was a post on Imam Tawhidi’s Facebook page on 13 February 2020 (‘second publication’);
(f) in the second publication, and other publications by Imam Tawhidi in 2019 (not being the subject of any claim in the Muslimovic proceeding) she was identified variously as ‘RECEBTIONIST’, ‘thick-head receptionist’, ‘beaceful wife’, and ‘member of the beaceful Islamic Centre’; and
(g) Ms Muslimovic also claims aggravated and special damages.
The applications
The current applications before the Court are as follows:
(a) in the Tawhidi proceeding, a summons filed by Mr Awad on 27 October 2020 to file and serve a subsequent pleading to Imam Tawhidi’s reply pursuant to rule 14.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’);
(b) in the Awad proceeding, a summons filed by Mr Awad on 27 October 2020 seeking leave to file and serve a further amended statement of claim; and
(c) in the Muslimovic proceeding, a summons filed by Imam Tawhidi on 6 November 2020, which seeks the following relief:
(ix)pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) and/or r 23.01 of the Rules, the claims in the amended statement of claim be dismissed; and
(x) alternatively, pursuant to r 23.02 of the Rules, the amended statement of claim be struck out in whole or in part on the basis that it does not disclose a cause of action, it may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of process of the Court.
The application in the Tawhidi proceeding
The draft rejoinder prepared by Mr Awad responds to the detailed assertions made by Imam Tawhidi in his reply regarding his appointments, his educational and theological qualifications, and his leadership role in various Islamic organisations by referring to a number of organisations which are said to have denounced Imam Tawhidi for his inflammatory and divisive comments regarding Muslims in Australia. The application was not opposed, and the proposed pleading seems to be in order. Accordingly, leave will be granted, and nothing further needs to be said about this application in these reasons.
The application in the Awad proceeding
Imam Tawhidi opposes Mr Awad’s application to file his proposed further amended statement of claim (‘pleading’) on three grounds:
(a) in circumstances where some of the publications do not identify Mr Awad by name, the pleading does not adequately allege that Mr Awad was the subject of the publications concerned;
(b) some claims are statute barred, in that they were introduced into the pleading more than twelve months after the relevant publication was made;[4] and
(c) many of the imputations with respect to the twenty one publications referred to in the pleading are not capable of being conveyed.
[4]See s 5(1AAA) of the Limitation of Actions Act 1958 (Vic).
Imam Tawhidi’s submissions set out a summary of the relevant principles with respect to the summary dismissal of imputations, as follows (citations omitted):
(a)the test is whether the matter complained of is capable of conveying to the ordinary reasonable reader imputations which are defamatory of the plaintiff; and
(b)in applying this test, a court must reject any strained, forced or utterly unreasonable interpretation of the matter complained of – the ordinary reasonable reader does not engage in over-elaborate analysis in a search for hidden meanings;
(c)a court must proceed on the basis that the ordinary reasonable reader is a person of fair, average intelligence, who is neither perverse, morbid or suspicious of mind, nor avid for scandal, but who is not unusually naïve, engages in a degree of loose thinking, can and does read between the lines in the light of their general knowledge and experience of worldly affairs, and has a capacity for implication that is greater than that of a lawyer; and
(d)a court must draw a distinction between the ordinary reasonable reader’s understanding of what the matter complained of is actually saying and a judgment or conclusion which the reader may reach as a result of their own beliefs or prejudices.
The above summary fairly and accurately reflects the relevant authorities, and there was no dispute between the parties regarding the applicable principles governing whether the imputations pleaded by Mr Awad are maintainable. Further, Mr Awad accepts the need to amend the pleading to provide adequate particulars of identification, and has taken on board some of Imam Tawhidi’s complaints regarding some of the imputations pleaded.
Imam Tawhidi submits that the claims with respect to three publications are time barred, in that they were published more than twelve months before they found their way into one of the numerous iterations of Mr Awad’s pleading. These publications are:
(a) the publications in annexure C, where Imam Tawhidi published details of a complaint he made to the Legal Services Commissioner on 27 February 2019, but was not referred to in any version of the pleading until 18 May 2020;
(b) the publications in annexure E, which were said to have been published on 4 and 5 March 2019, where Imam Tawhidi solicited funding to defend Mr Awad’s claim for an intervention order, were not referred to in any version of the pleading until 18 May 2020; and
(c) the publications in annexure F, which includes another fundraising appeal by Imam Tawhidi, which were first annexed to the amended statement of claim filed with the County Court on 15 May 2020.
Mr Awad submitted that each of the publications said by Imam Tawhidi to be time barred are still accessible online today.
It seems to me that the question of whether the publications in annexures C, D and E were time barred is a matter for evidence at trial, given the submissions of Mr Awad to the effect that the material is still available online. Further, the material in Annexure C contains a date which suggests that it was first published on 13 June 2019, that is, more than twelve months before the most recent version of the pleading was filed, but less than twelve months prior to the preceding versions served on 15 and 29 May 2020.
The authorities made it clear that with the material accessible on the internet, the act of publication is bilateral; that is, the act of publication is completed when a personal downloads and views the material.[5] Accordingly, as each occasion material is downloaded constitutes a separate act of publication, if the materials within Annexures C, E and F remain available online, then there is a possibility that Mr Awad will able to establish at trial that his claims with respect to these materials are not time barred.[6] Conversely, Imam Tawhidi’s defence to the claims arising out of these materials on the basis that they are time barred may well be successful at trial, but that is not, at this stage, a foregone conclusion.
[5]Dow Jones Company Inc v Gutnick (2002) 210 CLR 575.
[6]See also Dods v McDonald [2016] VSC 201.
As for the question of whether the publications conveyed the imputations asserted by Mr Awad in the pleading, it is not necessary for present purposes to recite at length the parties’ submissions with respect to each of the publications. Imam Tawhidi’s main complaints were as follows:
(a) none of the publications go so far as to convey an imputation that Mr Awad is a terrorist;
(b) none of the publications go so far as to convey an imputation that Mr Awad knowingly assists terrorist fanatics who want to kill innocent people in Australia;
(c) none of the publications go so far as to convey an imputation that Mr Awad facilitates terrorism or uses actual ISIS practices; and
(d) none of the publications go so far as to convey imputations that Mr Awad abused is position as a migration agent by helping terrorists come to Australia.
Essentially, while Imam Tawhidi conceded that the publications could give rise to imputations that Mr Awad supported or encouraged terrorist acts, any allegation that the publications carried imputations that Mr Awad committed or facilitated terrorist acts is bound to fail. In broad terms, I agree, but in some respects, with respect to some publications and imputations, I beg to differ. In particular, I do consider that some of the materials do give rise to an imputation to the effect that Mr Awad has used his qualifications and expertise in immigration law to facilitate the arrival of “undesirable” migrants to Australia. However, I agree with Imam Tawhidi that the “Hitler reacts” video at Annexure O, being the well-known vehicle for many satirical publications, cannot convey any imputations defamatory of Mr Awad, and the relevant part of the pleading should be struck out.
Imam Tawhidi’s legal team prepared a useful table of the publications and the imputations said by Mr Awad to arise from those publications, highlighting those imputations which Imam Tawhidi disputes are conveyed by the corresponding publications. A modified version of this table, which summarises my findings with respect to each of the publications and imputations, is Annexure A to these reasons.[7]
[7]The yellow highlighted imputations are those disputed by Imam Tawhidi. My proposed amendments and deletions are tracked to show my deletions and amendments.
Accordingly, I will give Mr Awad leave to file and serve an amended version of the pleading which:
(a) deletes paragraphs 57 to 59 inclusive and Annexure O of the pleading;
(b) deletes or amends the pleaded imputations in accordance with Annexure A of these reasons;
(c) provides the necessary particulars of publication with respect to each publication; and
(d) where necessary (that is, where the material concerned does not expressly refer to Mr Awad by name), provides the particulars of identification.
Application in the Muslimovic proceeding
As noted above, Imam Tawhidi seeks summary judgment against Ms Muslimovic on the basis that her claims in the Muslimovic proceeding have no real prospects of success. Alternatively, Imam Tawhidi seeks to strike out the amended statement of claim on the basis that it discloses no cause of action against him, it may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of process.
Imam Tawhidi’s application was supported by an affidavit sworn by his solicitor, Mr Blake Pappas, on 6 November 2020. In this affidavit, Mr Pappas deposed, in summary, as follows:
(a) the Muslimovic proceeding, the Tawhidi proceeding, and the Awad proceeding all arise from the same sequence of events;
(b) Imam Tawhidi never received a concerns notice from Ms Muslimovic prior to her issuing the Muslimovic proceeding on 24 June 2020, some months after the Tawhidi proceeding and the Awad proceeding were issued;
(c) Ms Muslimovic alleges that on 14 January 2020, Imam Tawhidi published the website but provided no particulars of publication;[8]
[8]Since the time Mr Pappas swore his affidavit, Ms Muslimovic has produced evidence of publication.
(d) he is instructed that the contents of the website were only present on the website for less than a month, and the website has been empty ever since;
(e) in the second publication, a Facebook post, Ms Muslimovic is not named, and there is no evidence that any other person read the publication and identified her;
(f) Ms Muslimovic’s claim for special damages will be limited by the fact that she is employed by her husband, Mr Awad; and
(g) he deposed as follows:
I am concerned that the plaintiff has brought this claim merely to put more pressure on the defendant in the two other claims as between the defendant and her husband, Mr Awad.
Presently, based upon my experience as a commercial litigator, I would estimate that if the plaintiff’s claim proceeded to trial here, the trial would run for 4 or 5 days and the costs for each party, calculated on a standard basis, would be around $200,000.
Ms Muslimovic relied upon an affidavit affirmed by her on 17 November 2020, where she deposed, in summary, as follows:
(a) she is a legal practitioner largely practising in immigration law and in conveyancing;
(b) she deposed as follows:
… the defendant has orchestrated a prolong [sic] ongoing smearing campaign against myself and my husband using his extensive social media presence;
(c) Mr Awad sent Imam Tawhidi and his solicitors a concerns notice complaining of publications concerning both her husband and herself on 15 August 2019;
(d) Imam Tawhidi has made numerous publications on his public Facebook page, which has 300,000 followers, ridiculing and mocking her, but the claims in the Muslimovic proceeding focus on what she described as the most egregious publications;
(e) on 20 February 2020, Dr Waleed Saleh, one of her husband’s clients, informed her husband that while searching via Google the name ‘Moustafa Awad’ he found the website, downloaded its comments, and read its contents;
(f) she was embarrassed that her name was mentioned on the website, particularly given that the website had come to the attention of a client for whom she had worked. The website still appears in a list of results when her husband’s name is searched via Google;
(g) on 20 February 2020, Mr Awad took various steps to remove the website, including contacting the website host, the police, and the eSafety Commissioner, but these attempts were unsuccessful;
(h) she has been identified in the second publication by some of her clients and many of her family members in Australia and overseas;
(i) she was offended by Imam Tawhidi’s concerns and suggestions concerning her motives for issuing the Muslimovic proceeding; and
(j) she deposed as follows:
I believe the defendant has not removed all of these publications and took this course of action in litigation as a strategy to utilise his superior financial ability during litigation and to exacerbate or cause me mental harm, apply pressure on both myself and my husband to abandon our claims against him and pursue his smearing campaign. I have no alternative to pressing my claim against the defendant, failure to do so would be seen as an acceptance of the defamatory statements as the truth in relation to me.
Ms Muslimovic also relied upon an affidavit of Dr Waleed Saleh of 16 November 2020, who deposed as follows:
I am a regular client of Ms Jasna Muslimovic and Moustafa Awad. I have retained their service in relation to immigration and some legal works in the past.
On 26 February 2020, I have attempted to refer Moustafa Awad as an immigration lawyer to one of my friends who asked me to provide him with his contact details, website page to book an appointment. I have uploaded the words “Moustafa Awad” into google search engine. In the searching results I found a website named I clicked on the website link to find the publication annexed to my affidavit, now produced to me at the time of signing this affidavit and marked “WS-1” true copy of the publication I read on the website on 26 February 2020.
I contacted Moustafa Awad by a text message on the same day and I informed him about the website. Moustafa rang me on the same day and asked me of how I found that website. I explained to him that I was searching his name on google to refer him a new client and I found it on the search results.
Dr Saleh exhibited a copy of the contents of the website to his affidavit. The website includes a photograph of Mr Awad wearing robes, a bar jacket, and jabot, and provides as follows:
COMING SOON IN 2020
AUSTRALIA’S VERY BEACEFUL LAWYER
[photograph of Mr Awad here]
A detailed and extensively referenced website dedicated to exposing and archiving ‘Moustafa Awad’s promotion of violence, Jihad and terrorism’; along with his partner Jasna Muslimovic’s unprofessionalism and conduct.
For the purpose of transparency, this website will also include ALL the documents involved in the court hearings and lawsuit which show Moustafa Awad’s many lies to the court before his humiliating (first) loss; along with a compilation of all documents in E-book format – downloadable for free.
Moustafa Awad is also known as ‘Matt Awad’. This website shall continue to update the public regarding any other identities he is (or will be) known by.
Once this legal matter is completely over and justice is served, this website will release a documentary revealing the full story from beginning to end, which will include exclusive interviews with Imam Tawhidi, his lawyer and witnesses.
In the submissions filed on her behalf on 18 November 2020, Ms Muslimovic rejected Imam Tawhidi’s contention that the imputations pleaded in her amended statement of claim were not capable of being conveyed. After restating (uncontroversially) the applicable legal test, Ms Muslimovic submitted as follows:
It is clear that the essence of a defamation action is disparagement or diminution of reputation, whether it be a personal, business, or professional reputation. Statements which do not have any capacity to diminish a claimant’s reputation, such as ‘mere insults’ or ‘vulgar abuse’ are not defamatory.
To interpolate here, while the statement above is, strictly speaking, not entirely accurate, as will be discussed later in these reasons, it does highlight the main issue in this application. The real war of words is between Imam Tawhidi and Mr Awad. The question is whether the publications with which the Muslimovic proceeding is concerned extend beyond the making of unprovoked, gratuitous insults regarding Ms Muslimovic to giving rise to imputations which are capable of causing real harm to Ms Muslimovic’s reputation.
Ms Muslimovic submitted as follows with respect to imputations said to have been conveyed by the website:
(a) she is a partner of a terrorist who has engaged in promoting violence, jihad, and terrorism.
(b) by assisting in the promotion of violence, jihad and terrorism, she has conducted herself in an unprofessional manner.
(c) she knowing assists in promotion of violence, jihad and terrorism; and
(d) she condones the murder of innocent people by Islamic terrorists.
Ms Muslimovic submitted that the following imputations arise out of the second publication:
(a) she knowingly assists terrorist fanatics who want to kill innocent people in Australia.
(b) she condones the murder of innocent people by Islamic terrorists.
(c) she encourages Australians to be murdered by ISIS over their opinions and freedom of speech.
(d) she abused the law to intimidate Australians who exposed jihadists.
(e) she promotes Terrorism.
(f) she supports jihadists; and
(g) she supports terrorism.
Ms Muslimovic submitted, in relation to imputations in paragraph 40 (a), (b), (e), (f) and (g), as follows:
The defendant used the following phrases ‘the need to increase my personal guards’, ‘beaceful lawyers who want Australians murdered by ISIS’, ‘Islamist Extremists’, ‘jihadists’, ‘exposing extremist lawyers who promote terrorism’, ‘their support for terrorism is exposed’.
In relation to the imputation in paragraph 40 (c), Ms Muslimovic submitted as follows:
The defendant used phrases ‘beaceful lawyers who want Australian murdered by ISIS over their opinions and freedom of speech’.
In relation to the imputation in paragraph 40 (d), Ms Muslimovic submitted as follows:
The defendant wrote ‘And I’ll say this now: Any financial gain out of this case will go straight into a transparent legal fund which will be used to defend those oppressed by Islamist Extremists and their lawyers; in order that innocent people don’t suffer from lawfare and go through what I had to go through due to exposing jihadists’.
Finally, in relation to all of the pleaded imputations, Ms Muslimovic submitted as follows:
The defendant used the phrases ‘exposing and archiving’ Moustafa Awad’s promotion of violence, jihad and terrorism; along with his partner Jasna Muslimovic’s unprofessionalism and conduct’.
In response, Imam Tawhidi submitted as follows:
(a) the amended statement of claim does not provide adequate particulars of the publication of the website;
(b) the imputation that Ms Muslimovic is a partner of a terrorist who has engaged in promoting violence, jihad and terrorism’ is not capable of being defamatory, as it does not convey a defamatory condition of her;
(c) the imputation that ‘By her assisting in the promotion of violence, jihad and terrorism, Ms Muslimovic has conducted herself in an unprofessional manner’ does not arise from the website, is embarrassing, and makes no sense;
(d) all of the imputations pleaded with respect to the website publication are strained, forced or unreasonable;
(e) with respect to the Facebook post, the pleading of identification is hopeless and embarrassing; and
(f) the Facebook post is not capable of conveying any of the pleaded imputations.
During the course of the hearing on 7 December 2020, counsel for Imam Tawhidi confirmed that Imam Tawhidi also contends that summary judgment should be granted in his favour on the grounds that a defence on the grounds of triviality[9] was bound to succeed.
[9]Section 33 of the Defamation Act.
Accordingly, in relation to Imam Tawhidi’s application for summary judgment, the issues are as follows:
(a) whether the materials complained of by Ms Muslimovic are capable of conveying the pleaded imputations;
(b) whether the imputations which are conveyed are capable of injuring the reputation of Ms Muslimovic; and/ or
(c) even if the publications are capable of being defamatory, whether the harm to Ms Muslimovic’s reputation is so slight that a defence of triviality is bound to succeed?
Turning first to the question of whether the publications are capable of conveying the imputations pleaded, or indeed of any defamatory imputations, there is no dispute between the parties regarding the applicable principles, as set out in paragraph 22 of these reasons. The question for consideration here is whether the only injury to Ms Muslimovic is to her pride, rather than her reputation.[10]
[10]See Mundey v Askin (1982) 2 NSWLR 369, 372.
As previously observed, the publications by Imam Tawhidi complained of in the Muslimovic proceeding refer to Ms Muslimovic only in passing.
The contents of the website are reproduced in paragraph 36 above. The only reference to Ms Muslimovic is as follows:
A detailed and extensively referenced website dedicated to exposing and archiving ‘Moustafa Awad’s promotion of violence, Jihad and terrorism; along with his partner Jasna Muslimovic’s unprofessionalism and conduct.
In the second publication, Imam Tawhidi stated as follows:
It begins on Monday, and it ends whenever justice is served, my costs and damages are paid, and I get a public and permanent apology from him, his thick headed receptionist/partner/wife/sister/girlfriend/secretary/ whatever she is, and the law firm itself. our demands will be reasonable, lawful and through the law.
And, at the end of the post:
Their support for terrorism is exposed. Their victim card has been declined. Their abuse of the law has fired back.
However, it is by no means clear that Imam Tawhidi’s use of the third person plural in the above passage is intended to refer to Mr Awad alone, Mr Awad and Ms Muslimovic, or Mr Awad and other, unnamed ‘extremist lawyers’, particularly given that, on occasion, Imam Tawhidi uses the first person plural to describe himself.
I agree that it is a real stretch to contend that the publications convey the imputations pleaded in Ms Muslimovic’s amended statement of claim. However, the authorities make it clear that, when considering whether any words convey a defamatory imputation, the words are to be read in their context, including the other words in the relevant publication.[11]
[11]See Norman v Future Publishing [1999] EWLR 325, 329; and Cornes v The Ten Group Pty Ltd (2011) 114 SASR 1, 18.
Turning first to the website, it is quite clear that the primary target of the website is Mr Awad. His photograph (dressed in legal garb) is prominent, and the website is said to be dedicated to ‘exposing and archiving Moustafa Awad’s promotion of violence, jihad and terrorism’, immediately followed by a vague and ungrammatical reference to Ms Muslimovic. However, reading the reference to Ms Muslimovic in the context of the publication as a whole, it is at least arguable that that Imam Tawhidi seeks to associate Ms Muslimovic with Mr Awad’s alleged views and conduct.
Further, in the second publication, the rather insulting reference made regarding Ms Muslimovic seems to me not only to amount to Imam Tawhidi insulting the intelligence of Ms Muslimovic, as that is the only way in which the description ‘thick headed’ could be understood, but also to imply that Ms Muslimovic has, like her husband, conducted herself in a manner which warrants providing an apology to Imam Tawhidi. The timing and subject matter of the second publication as a whole suggest that the legal action being referred to is the Tawhidi proceeding.
There has been substantial discussion in the authorities as to whether “mere vulgar abuse” can constitute defamatory matter. Further, there has also been consideration of the question of whether denigration or ridicule, in the absence of any statement which attributes moral blame to a person, can be defamatory. My review of the authorities suggests that both of those issues have been resolved in a manner favourable to potential plaintiffs.
In Bennette v Cohen[12], the New South Wales Court of Appeal confirmed that the critical issue was whether the statement concerned had the capacity to injury the reputation of a plaintiff, not the manner in which the statement was conveyed, however offensive the manner of the communication. Bryson JA said as follows:
In my opinion it is clear from the passage I have set out from Mundey v Askin that there is not a dichotomy between vulgar abuse (or mere vulgar abuse) on the one hand and defamatory matter on the other, and that it does not follow from establishing that the matter complained of was mere vulgar abuse that it was not defamatory. What is for decision is whether the words spoken bore a meaning that was likely to affect the reputation of the person spoken of. “Vulgar abuse” and “mere vulgar abuse” are not terms of art nor are they capable of high definition or detailed exposition; but in determining the meaning of words used and whether their meaning was defamatory it may be open to consideration whether the terms used and the context in which they were used were such that there was no likelihood of their affecting the reputation of the person spoken of; that no notice would be taken of them. This would not be the right conclusion on all statements which could accurately be described as vulgar abuse or mere vulgar abuse; much vulgar abuse is highly defamatory.[13]
[12](2005) 64 NSWLR 81.
[13]Ibid, 97-8.
And further:
The offensive nature of the imputation should not be allowed to mask the need to consider its effect on reputation. To my mind it is not beyond the range of the rational to decide to the effect that reasonable people, right thinking members of society generally, ordinary men not avid to scandal would not understand that imputation in a defamatory sense.[14]
[14]Ibid, 100.
Further, it has been accepted that statements which do not impute moral blame to someone, in the sense that they allege some impropriety or misconduct on the part of the plaintiff, but may still adversely affect the reputation of the plaintiff, by, for example, having a tendency to expose someone to ridicule. This is illustrated by the headnote in the decision of Berkoff v Burchill[15], an English decision which has been cited and followed in a number of Australian decisions, as follows:
Held (Millett LJ dissenting) – While insults which did not diminish a person’s standing among other people did not found an action for libel or slander, words were capable of being defamatory of a plaintiff if they held him up to contempt, scorn or ridicule or tended to exclude him from society, notwithstanding that they neither imputed disgraceful conduct to him nor any lack of skill or efficiency in the conduct of his trade or business or professional activity. Whether they were so capable in a particular case had to be answered in relation to the plaintiff ’s claim, taking into account the context in which they were published. In the instant case, the words might have been understood to mean that the plaintiff was not merely physically unattractive in appearance, but actually repulsive. To say that of someone in the public eye who made his living, in part at least, as an actor could be defamatory, since it was capable of lowering his standing in the estimation of the public and of making him an object of ridicule. It followed that it would be inappropriate to withdraw the matter from the consideration of a jury and the appeal would accordingly be dismissed.[16]
[15][1996] 4 All ER 1008.
[16]See also Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306.
Accordingly, I accept that, while the reference to Ms Muslimovic in the website and the second publication are almost as a sidewind to the commentary regarding Mr Awad, and could be read as simply being gratuitous insults directed at Ms Muslimovic, it seems to me to be at least arguable that those publications do hold up Ms Muslimovic to ridicule, and are capable of conveying imputations which would cause the ordinary reader to think less of her, and as such, injure her reputation. However, I do not accept that the imputations pleaded in the amended statement of claim, which, I accept, are defamatory, are capable of being conveyed.
In my view, what the publications are capable of conveying are imputations along the following lines:
(a) Ms Muslimovic supports Mr Awad’s views and is an active partner in his extremist conduct;
(b) Ms Muslimovic is stupid and unprofessional; and
(c) Ms Muslimovic is a lawyer who holds extremist views.
I did give some consideration to whether the second publication suggested that Ms Muslimovic was not a lawyer at all, but “just” a receptionist, but upon reflection, I do not consider that such an imputation is likely to be held to be defamatory of a person.
As for Imam Tawhidi’s claim that summary judgment should be granted in his favour, on the grounds that a defence based upon s 33 of the Defamation Act would be bound to succeed, it is necessary to keep in mind that, in order to grant summary judgment, I would need to be satisfied that the likelihood of such a defence succeeding is so high that Ms Muslimovic’s claims in the Muslimovic proceeding have no real prospects of success.
Section 33 of the Defamation Act provides as follows:
Defence of Triviality
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
The principles governing the defence of triviality were summarised in the decision of the Queensland Court of Appeal in Smith v Lucht,[17] regarding the Queensland equivalent of s 33 of the Defamation Act, where Flanagan J stated as follows (footnotes omitted):
[17][2017] 2 Qd R 489.
First, the inquiry whether the applicant was unlikely to sustain any harm is directed to the time of publication. As observed by Moffitt P in Chappell v Mirror Newspapers Ltd the defence “is directed to the occasion or circumstance of the publication as the operative factor to render the defamation trivial”. This is because actionability is determined at the moment of publication and harm to reputation is done when a defamatory publication is comprehended by the reader or listener. Until then, no harm is done.
Secondly, the court must make a prospective inquiry in applying s 33. Specifically, for the defence under s 33 to succeed, the court must be satisfied “that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm”. As stated by Moffitt P in Chappell:
“The quality of the circumstances of the publication determines at the moment of publication whether it is or is not actionable; Morosi (supra at … 799). Actionability does not depend upon an inquiry as to what thereafter happens and in particular whether or not harm in fact probably resulted from the publication. The defence depends entirely on the causative potency of the circumstances ‘of the publication’ to produce immunity from harm.”
The prospective nature of the inquiry was also identified by the New South Wales Court of Appeal in Morosi v Mirror Newspapers Ltd:
“That section is concerned with ‘the circumstances of the publication’ and the likelihood of harm. It looks to those circumstances as at the time of publication, and requires the tribunal of fact, being aware of those circumstances, to consider prospectively as it were, the likelihood of harm ensuing, and not whether harm did actually ensue.”
Thirdly, it is accepted that the phrase “unlikely to sustain any harm” refers to “the absence of a real chance” or “the absence of real possibility of harm”.
Fourthly, the major circumstances the court should consider in deciding whether the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm include:
(a) the content of the publication;
(b) the extent of the publication;
(c)the nature of the recipients and their relationship with the plaintiff. This may include the recipients’ knowledge of the plaintiff’s reputation. As explained by Beazley JA (as her Honour then was) in Jones v Sutton:
“ … reputation may have some role to play in s 13, depending upon who the recipients are of the defamatory publication and the circumstances in which it was made. This is because the recipient of the communication is proximate to it. It is arguable that any special characteristics of him or her as recipient such as personal knowledge of the person defamed may be caught up in the circumstances of the publication.”[18]
[18]Ibid [34]-[37].
Significantly, in this decision, the majority of the Court held that the reference to ‘harm’ in s 33 of the Defamation Act ought to be construed as to confine ‘harm’ to harm to a person’s reputation, not harm of some other kind, such as emotional distress. This question has been the matter of some debate in the authorities.[19] However, while the position cannot be said to be finally settled, I am bound to follow the decision of an intermediate appellate court on the question of the construction of uniform national legislation, unless I am convinced it is plainly wrong, which I am not. Accordingly, while I accept, for present purposes at least, that Ms Muslimovic may have been embarrassed and possibly even distressed by the website and the second publication, I must, when evaluating whether the defence of triviality is bound to succeed, discount the impact of the publications on her feelings or mental well‑being. The impact upon her of the publications may be relevant to damages, but not to the question of whether Imam Tawhidi has an insurmountable defence.
[19]See, for example, the discussion of Kaye JA in Barrow v Bolt [2015] VSCA 107.
In order to grant summary judgment, I would have to be confident, on the basis of the circumstances in which the publication occurred, that Imam Tawhidi would almost certainly establish that Ms Muslimovic would have suffered no harm to her reputation as a result of the publications. I am not satisfied that the success of such a defence (where the onus is of course upon Imam Tawhidi to establish) is such a foregone conclusion as to warrant summary dismissal of the Muslimovic proceeding.
First, having regard to the circumstances identified in Smith v Lucht[20] above, the contents of the website and the second publication, while largely directed at Mr Awad, are quite inflammatory, and while I have not found that all of the imputations pleaded by Mr Awad in the Awad proceeding are capable of being conveyed by the relevant materials, those that remain are, in themselves, quite serious. While I accept that there is a material difference between allegations that a person is a supporter of terrorism and terrorists, and an allegation that someone commits terrorist acts, it is not a trivial matter to describe an Australian resident, let alone an Australian lawyer, as a supporter of terrorism and of ISIS. Secondly, the evidence before me is that Imam Tawhidi has an active social media presence, with a large following, so that the potential audience of the publications could be quite large, and most of whom would not otherwise know of Ms Muslimovic, and therefore would have no reason to disbelieve Imam Tawhidi’s portrayal of her.
[20][2017] 2 QDR 489.
Accordingly, I cannot be satisfied that, in the event that the website and the second publication were found to be defamatory of Ms Muslimovic, the prospects of success of any defence of Imam Tawhidi relying upon s 33 of the Defamation Act are so great such as to warrant the grant of summary judgment in his favour.
Finally, for completeness, I do not accept that I can infer that the Muslimovic proceeding is an abuse of process because it has been issued for a collateral purpose. Apart from Ms Muslimovic’s own evidence, which can be tested on this question at trial, the material before me suggests that Imam Tawhidi is not easily intimidated or bullied, and Ms Muslimovic would be well aware of that, by reason of the dealings between Imam Tawhidi and her husband over the past two years. I can infer from the identity of the law firm instructed by Imam Tawhidi that he does not lack resources to fund legal representation, and it is difficult to see how the issuing of the Muslimovic proceeding could materially alter the pressure upon him in this unfortunate suite of litigation.
I can infer from Mr Pappas’ evidence regarding the costs likely to be incurred by Imam Tawhidi in the conduct and the trial of the Muslimovic proceeding that it is contended, if not expressly so, that the Muslimovic proceeding is an abuse of process on the ground that the resources which will be consumed by the parties (and the Court) are so disproportionate to the issues at stake, and to the quantum of any damages which might be payable to Ms Muslimovic if she is successful. Such an argument has been successfully mounted before. In Bleyer v Google Inc[21], McCallum J of the Supreme Court of New South Wales stayed an action for defamation as an abuse of process on the grounds that:
... the resources of the Court and the parties that will have to be expended on the claim are out of all proportions to the interests at stake.[22]
[21][2014] NSWSC 897.
[22]Ibid [62]. Her Honour’s remarks were referred to with apparent approval in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 [5] per Basten JA.
In Asmar v Fontana,[23] I accepted, for the purpose of argument, that bringing a proceeding, including a defamation proceeding, which offends the principle of proportionality (in the sense of the relevant provisions of the Civil Procedure Act 2010 (Vic)), may amount to an abuse of process. This decision concerned a single oral statement by a candidate in a state by-election to a senior official of the Australian Labor Party to the effect that the plaintiff was believed to have been involved in defacing and/or vandalising campaign materials. One of the two participants to the conversation applied for summary dismissal of the proceeding on the grounds that it was an abuse of process. I dismissed the application, stating as follows:
It is generally not appropriate to dwell too much on the merits of a plaintiff’s claim or a defendant’s defence in ruling upon applications such as these, as they are properly matters for trial. However, I would make the following observations in response to the implied assertion of Mr Fontana that Mr Asmar’s claims are of minor moment, or, although counsel did not express it as such, Mr Asmar’s complaints amount to a storm in a teacup. First, context is important. This is not a purely private matter. I do not know whether Mr Asmar has any official political responsibilities within the ALP or related organisations, but the media articles relied upon by Mr Fontana in support of his application suggest that Mr Asmar is or has been actively involved in ALP affairs and election campaigns, is described as a supporter of Mr Shorten, and was apparently a person of interest in the Royal Commission into Trade Union Governance and Corruption. The allegations said to have been made by Mr Fontana amounted to allegations of criminal conduct on the part of Mr Asmar in the context of a by-election. While there was only one recipient of the oral publication, that recipient was the State Secretary of the ALP, which is notoriously a very senior and influential position in the ALP.
…
Finally, given that Mr Asmar’s claims against Mr Laurence will still be proceeding, staying the claims against Mr Fontana will not greatly reduce the requirement of the Court to commit resources to this matter.[24]
[23][2018] VSC 382.
[24]Ibid [12].
While the facts of that case are substantially different, they signal two matters of relevance to the current application. First, context is important. In particular, the two publications are quite inflammatory, concern matters which tend to generate considerable social and political controversy, and may well have had a large audience. Further, the two publications are not isolated instances: as shown by the annexures to the pleading in the Awad proceeding, Imam Tawhidi has been conducting quite a concerted campaign against Mr Awad, and, to a much lesser extent, Ms Muslimovic, who are both lawyers at relatively early stages of their careers. Similarly, given that the Muslimovic proceeding is likely to be heard together with the Tawhidi proceeding and the Awad proceeding, or at least consecutively, by the same judge, I doubt that the additional resources consumed by the Muslimovic proceeding will be as great as that contended for by Mr Pappas. The additional time to be taken by the evidence and submissions in the Muslimovic proceeding is likely to be quite modest, perhaps a mere day or two.
Accordingly, I will dismiss the application for summary judgment, but will strike out paragraphs 5 and 9 of the amended statement of claim, and grant Ms Muslimovic leave to replead.
Accompanying these reasons are orders giving effect to these reasons. The question of the costs of the various applications will be dealt with on the papers in the New Year.
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