Tabbaa v TCN Channel Nine Pty Ltd (No 2)

HER HONOUR: These are proceedings for defamation commenced by Mouhammad Tabbaa against TCN Channel Nine Pty Ltd arising out of the broadcast of a programme on 60 Minutes. This judgment determines the defendant’s objections maintained at the first listing of the proceedings in respect of an amended statement of claim filed on 5 June 2015.

The 60 Minutes programme was broadcast under the headline “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, ostensibly to go on holiday to Egypt with her eldest brother. The daughter alleges that after a week in Egypt, her brother took her to Jordan to meet up with her father, from whom her mother had been separated for some time. Her father took her to Syria where she was forced to remain against her will, living with relatives there. The story reported that, with assistance from the British Embassy, she was able upon turning 18 to escape from her relatives in Syria and return to Australia.

There is no objection to a number of the imputations pleaded by the plaintiff. As to the objections taken, the parties did not specify whether the Court was asked to determine those matters by way of separate question in the proceedings. It will be necessary to hear the parties on that issue before entering orders.

The first objection is to imputation (f):

The defendant submitted that imputation (f) is incapable of arising. The objection is to the inclusion of the words “whilst her aunt watched”. In my view, the matter complained of (which I have watched) is not reasonably capable of conveying that particular aspect of the imputation. The relevant passage of the matter complained of begins with the daughter’s allegation that she was forced to undergo an examination to determine whether she was a virgin. The presenter states “despite being a virgin, Rania’s father and brother weren’t satisfied. They beat her regardless.”

Following an allegation that her father beat her with his hands and a belt, the daughter states:

The sense of the imputation as presently formulated suggests the callousness of continuing to beat the daughter while another member of the family watched. That is plainly not the sense of the words spoken. The words “whilst her aunt watched” should be struck from the imputation.

The next objection is to imputation (g):

The defendant objects to that imputation as being bad in form. The imputation is drawn almost verbatim from words spoken by the daughter during the programme, where she says:

In my view, the ordinary reasonable viewer of the matter complained of would readily understand the daughter’s words to be rhetorical hyperbole. It would not be understood that the matter complained of was asserting as a literal fact that the plaintiff is the most evil person in the whole world, to the exclusion of all others (or even all others anyone would ever meet).

The plaintiff sought to defend the imputation by reference to the entitlement of a plaintiff, in an appropriate case, to plead an imputation adopting the words of the matter complained of, citing 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 J; John Fairfax Publications Pty Ltd v Blake; David Syme Co Ltd v Blake (2001) 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].

None of those decisions suggests that the adoption of the words of the matter complained of in an imputation is an inalienable right. Each case must be considered according to its own circumstances. Ultimately, the task for the pleader is to distil that which is attributed to the plaintiff by the matter complained of. In some cases, that is properly achieved by appropriating the author’s words. In the present case, I do not think the act or condition allegedly attributed to the plaintiff is properly distilled by appropriating verbatim the daughter’s hyperbole.

The next objection is to imputation (j):

The defendant objects to that imputation as being bad in form, since it fails to specify any act or condition on the part of the plaintiff. I agree. The matter complained of is plainly capable of conveying the meaning that the plaintiff is the kind of person who would kill his daughter for being a virgin or for bringing dishonour on the family. The vice of the imputation in its present form is that it is hypothetical and so fails to specify any existing condition.

The next two objections may be dealt with together. They are that the plaintiff threatened to slit the throat of his wife and that the plaintiff threatened to slit the throat of Rania’s sister. The objection is that the imputations are incapable of arising.

The relevant passage of the matter complained of is in the following terms.

The defendants contend that the matter complained of is not reasonably capable of conveying the imputation that the plaintiff made any threat to injure Rania’s mother or sister other than a threat to Rania. In my view, imputations (k) and (l) are ambiguous in that respect. It is not clear whether the imputation attributes to the plaintiff the act of making threats directly to the mother and the sister or only the act of making that threat to Rania. The plaintiff’s correspondence only compounds the confusion, saying:

In my view, the plaintiff will have to amend the imputation to specify whether it is alleged that the matter complained of attributed to the plaintiff the act of making a threat to Rania (an imputation clearly capable of arising) or more broadly. I do not think the matter complained of is capable of conveying the broader imputation.

Separately, the defendants complained that, if the imputation intends only to convey that the threat was made to Rania, it does not differ in substance from imputation (c), which is that the plaintiff was violent and abusive towards his daughter. I do not accept that submission. In my view, the specificity of the imputation about a threat to cut particular people’s throats distinguishes it from that general imputation.

Finally, the defendant objects to imputation (n):

In writing, the objection was that the imputation does not differ in substance from imputation (a), which is that the plaintiff forced his daughter when she was only 13 to marry her cousin 15 years her senior. I do not accept that submission. In my view, the element of a criminal offence having been committed is plainly different from the sense captured in imputation (a). In oral submissions Mr Dawson, who appears for the defendant, submitted that the matter complained of is not capable of conveying the imputation of committing a crime, since the matter complained of specifically states that the offence was only recently created. In my view, that is plainly a question for the jury.

As foreshadowed above, I will hear the parties as to the form of orders to be entered to give effect to these reasons.