Tabbaa v TCN Channel Nine Pty Ltd (No 3)

HER HONOUR: These proceedings have had their first listing and the Court has given rulings on the defendant’s objections to the plaintiff’s pleadings, as contemplated by cl 13 of Practice Note SC CL 4: Tabbaa v TCN Channel Nine Pty Ltd (No 2) [2015] NSWSC 921. In that judgment at [3], I noted that the parties had not specified, in the case of objections as to the capacity of the matter complained of to convey the pleaded imputations, whether the Court was asked to determine that issue by way of separate question in the proceedings. The parties have since confirmed that to be the case. This judgment determines an objection to a proposed new imputation and two objections overlooked by counsel at the first listing.

The action arises from a 60 Minutes programme broadcast under the title “Forced marriage: an extraordinary story of kidnap, survival, escape and hiding”. The story featured allegations made by the plaintiff’s daughter that, at the age of 13, she was in effect tricked by her parents into leaving Australia and forced to live with relatives in Syria.

One of the imputations considered in the first listing judgment was imputation (g):

That imputation was drawn directly from words spoken by the daughter during the programme, where she says:

I held that imputation (g), although drawn in terms from those words, failed to distil with adequate specificity any act or condition allegedly attributed to the plaintiff.

The plaintiff seeks to re-plead the imputation as follows:

The defendant objects to the new form of the imputation on the ground that it still fails to meet the requirement of specificity.

The gist of an action in defamation is the attribution to the plaintiff of some act or condition. It is uncontroversial that, in fairness to a defendant, the act or condition must be stated with specificity. The question is, how much specificity? That question cannot be answered with any mechanical rule. In particular, no rule either permits or prohibits appropriation of the very words of the matter complained of. The answer to the question is “adequate specificity”. Self-evidently, that is an evaluative judgment to be made according to the circumstances of each individual case.

In his dissenting judgment in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, Kirby P considered arguments for and against the “high degree of specificity” favoured by the then Defamation List judge, Hunt J. The President was concerned at the risk of delay and expense inherent in the “search for excessive precision” in defamation pleadings, stating “it is time to send a clear message to judges conducting the Defamation List that such ‘excessive precision’ is to be avoided”. That “excessive precision” is to be avoided may be accepted but that also is an evaluative judgment. As illustrated in Drummoyne, it is one on which the finest minds might differ.

The principle that emerges from Drummoyne is that the question whether there has been “adequate specification” by a plaintiff of the imputations sued on is to be determined by reference to the clarity with which they delineate the issues for trial. The Chief Justice said that, in determining the necessary specificity, “the solution will usually be found in considerations of practical justice rather than philology” (at 137C). His Honour expressly approved (at 138E) the test formulated by Hunt J in Whelan v John Fairfax (1988) 12 NSWLR 148 at 155; the conclusion stated by Priestly JA (at 155F) is to like effect; and see Kirby P at 151G. Justice Priestley said:

I do not think an imputation “that the plaintiff is an extremely evil person” meets that requirement of clarity in the present case.

Mr Rasmussen, who appears for the plaintiff, reminded me (as he had in the first round of argument) of a number of authorities in which the Court has approved the approach of drawing an imputation from the words of the matter complained of. The authorities cited by Mr Rasmussen are Hepburn v TCN Channel 9 Pty Ltd [1983] 2 NSWLR 682 at 688B to C per Hutley JA; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 144 and 148 per Kirby P; John Fairfax Publications Pty Ltd v Blake; David Syme Co Ltd v Blake [2001] NSWCA 434; 53 NSWLR 541 per Hodgson JA at [52] to [54]; Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 at [29] per McColl JA and Toben v Milne [2014] NSWCA 200 at [21].

Those authorities do not establish a rule that an imputation which appropriates the words of the matter complained of must necessarily, by force of that approach, meet the requirement of adequate specification.

In Hepburn, the imputation under challenge was that the plaintiff is an “abortionist”. That is a noun of some specificity.

The passages in Drummoyne relied upon by Mr Rasmussen cite the dissenting judgment of Kirby P. The Chief Justice accepted that the degree of specificity appropriately required of a plaintiff must be informed by the content of the matter complained of, citing the example from John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706. In that case, an imputation was allowed “that the plaintiff was a corrupt judge” where the imputation was drawn from a newspaper billboard which read: “Govt’s war on corrupt judges”.

In the passage from Blake cited by Mr Rasmussen, the example given by Hodgson JA was that, if a publication contained the words that a person “assaulted a 12 year old boy by use of an electrical device”, the person could plead those words as an imputation.

The imputations under consideration in the passage cited by Mr Rasmussen from Mahommed were:

Justice McColl said, unexceptionally: “This was not a case where use of the exact words of the broadcasts led to any obscurity” (at [29]).

Finally, the passage in Toben v Milne at [21] cited by Mr Rasmussen states:

The imputation under challenge in that case was “that the plaintiff fabricated history”. The decision of the Court of Appeal proceeded on the understanding that my rejection of that imputation at first instance was based solely on the conclusion that the imputation did not differ in substance from another imputation. I should record that I intended to convey that I accepted the defendant’s submission that the allegation of “fabricating history” failed to distil any clear defamatory act or condition attributed to the plaintiff by the matter complained of but my reasons did not make that clear: see Toben v Mathieson; Toben v Nationwide News Pty Limited [2013] NSWSC 1530 at [31]). In any event, the Court of Appeal concluded that the imputation was “too vague and imprecise”: at [31].

Those authorities establish no more than that it may, in some cases, be permissible to plead an imputation drawn in terms from the matter complained of and that in some cases the pleader will be able to do no better (such as in the case of a two-word billboard).

In my view, the issue in the present case is similar to that considered in Drummoyne. This is not a case of a two-word billboard. In the context of this lengthy programme, the meaning of an imputation that the plaintiff is evil (even extremely evil) is not sufficiently clear to enable the defendant to plead in answer to it. As submitted by Mr Dawson, the matter complained of does contain substantially greater specification of the evil opened in the daughter’s remarks. Further, in my view, the existing imputations cover that field.

The imputation in its present form is apt to generate confusion, both at the pleading stage and at the trial. By what measure should the defendant determine whether to plead truth to such an imputation? What documents would be discoverable in aid of a truth defence? Could the plaintiff be interrogated as to all aspects of his life? Without giving in to Manichaeism, could he meet the defence with evidence of his being good? In my view, the imputation fails to meet the requirement of adequate specificity and is liable to be struck out on that basis. Having regard to the scope of the existing imputations, I do not think the plaintiff should have leave to re-plead that imputation.

The remaining objections relate to the second matter complained of, which is the publication of the programme on the 60 Minutes website. As commonly occurs on a media website, the web page on which the video can be viewed includes additional remarks calculated to attract the viewer, appearing as follows:

Imputation (o) is:

That imputation is drawn in terms from the words at line K, set out above. Mr Dawson submitted that the imputation is imprecise or ambiguous as it does not specify what the “dreadful breaches of human rights” were. He further submitted that, if greater specificity were provided, the imputation would not differ in substance from imputations (b), (f), (h), (i) or (n), each of which is an imputation specifying particular conduct of the kind that would ordinarily be understood to be a breach of human rights (abduction of the daughter, holding her captive against her will, beating her, permitting her to be beaten by her brother, forcing her to undergo a virginity test and forcing her to marry her cousin).

The part of the matter complained of relied upon as the basis for the imputation does not refer to the plaintiff in terms. The connection between the plaintiff and the words relied upon can only be derived by watching the whole of the matter complained of. Having done so, the viewer would have seen the specific allegations of abuses of rights made in the programme.

In my view, imputation (o) suffers from the same difficulty as imputation (g). The range of breaches of human rights possibly referred to is considerable; the intended meaning is not clear. In my view, imputation (o) is liable to be struck out on the ground that it fails to meet the requirement of adequate specificity.

The last objection is to imputation (p), which is “that the plaintiff intends to track down his daughter and kill her”. That imputation comes from the words at line O set out above:

Mr Dawson submitted that the imputation is incapable of arising. He acknowledged that he could not object to an imputation that there were reasonable grounds for the daughter to fear that her father would track her down and kill her but submitted that the fact of the plaintiff’s holding that intention is not capable of being conveyed by the matter complained of.

There is force in the suggestion that the imputation is pitched too high but, in my view, that is an issue which should be left to the jury. There is ample material in the matter complained of for the jury to conclude that the plaintiff is in fact a real threat to his daughter. Although there is no explicit reference to his intention, the state of mind attributed to him in the imputation is an available inference from the material reported and should accordingly be left to the jury to determine. Imputation (p) will go to the jury.