Federal Court of Australia

Hun v Aljazeera International (Malaysia) SDN BHD [2023] FCA 1103

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ interlocutory application dated 19 May 2023 be dismissed.

2.    The matter be listed for case management hearing on 27 October 2023 at 10:15am.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ interlocutory application dated 19 May 2023 be dismissed.

2.    The matter be listed for case management hearing on 27 October 2023 at 10:15am.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCEVOY J:

1    Before the Court are applications dated 19 May 2023 brought by the respondents in VID 767 of 2022, Aljazeera International (Malaysia) SDN BHD (Al Jazeera) and others (the Al Jazeera proceeding) and the respondents in VID 768 of 2022, Nationwide News Pty Ltd and another (the Nationwide News proceeding), seeking orders that the serious harm element of the applicant’s causes of action in defamation be determined separately from and prior to any other question in the proceedings.

2    Recognising that there is a real question whether s 10A(5) of the Defamation Act 2005 (Vic) is picked up by s 79 of the Judiciary Act 1903 (Cth), the Al Jazeera respondents bring their application pursuant to r 30.01 of the Federal Court Rules 2011 (Cth). It is their position that it is unnecessary to determine whether s 10A(5) is picked up, because the question of serious harm in the Al Jazeera proceeding warrants determination as a separate matter pursuant to r 30.01.

3    The Nationwide News respondents bring their application pursuant to r 30.01 of the Rules and s 10A(5) of the Act. The Nationwide News respondents also seek a separate determination of whether the relevant publications in that proceeding conveyed the meanings pleaded in paragraph 7 of the statement of claim and, if so, whether the meaning pleaded at paragraph 7(g) is defamatory of the applicant.

4    The Al Jazeera respondents rely on:

(a)    written submissions dated 19 May 2023;

(b)    an affidavit of Mr Peter Bartlett affirmed on 19 May 2023; and

(c)    an affidavit of Mr Dean Levitan affirmed on 17 August 2023.

5    The Nationwide News respondents rely on:

(a)    an affidavit of Mr Justin Quill sworn 19 May 2023;

(b)    written submissions dated 26 May 2023; and

(c)    an affidavit of Ms Jessie Nygh affirmed on 24 August 2023.

6    In response to the Al Jazeera application the applicant relies on:

(a)    written submissions dated 19 June 2023;

(b)    an affidavit of Mr Adam Lopez sworn 19 June 2023 (the first Lopez affidavit);

(c)    an affidavit of Mr Adam Lopez sworn 9 August 2023; and

(d)    an affidavit of Mr Adam Lopez sworn 23 August 2023.

7    In response to the Nationwide News application the applicant relies on:

(a)    written submissions dated 19 June 2023 (the same as those responding to the Al Jazeera submissions);

(b)    the first Lopez affidavit; and

(c)    an affidavit of Mr Adam Lopez sworn 25 August 2023.

8    The applicant also provided a document on the morning of the hearing objecting to certain evidence in the affidavits of Messrs Bartlett and Quill, the substance of which was that at the time of the relevant publications the applicant was already a person who did not have a good reputation and thus the publications could not have caused him serious harm. I will return to the question of the admissibility of the relevant evidence.

9    For the reasons that follow I have determined that there should not be a separate hearing to determine the serious harm element in s 10A(1) of the Act in the Al Jazeera proceeding. Nor should there be a separate hearing to determine the serious harm element and the meanings said to arise from the relevant publications in the Nationwide News proceeding. Had the applications sought a separate hearing only on the more confined question of the meanings said to have arisen from the relevant publications, different considerations would have been engaged.

The publications and the pleaded meanings

10    Although the applicant is said to be an Australian permanent resident, it does not appear to be a matter of controversy that he is a citizen of Cambodia and spends substantial periods of time in that country. It is also accepted that at the present time the applicant is unable to return to Australia because the Department of Home Affairs has not renewed his sub-class 155 Resident Return Visa (RRV) which is required to enter Australia from Cambodia. The applicant is a director of companies in Cambodia, and has until recently been a director of a company in Australia. The applicant’s wife and children live in Australia and the children are at school in Melbourne.

The Al Jazeera proceeding

11    In broad terms, the applicant has sued the Al Jazeera respondents on the basis of publications in Australia of certain material on the Al Jazeera website and on Youtube in the form of a documentary film entitled “Forced to scam, Cambodia’s Cyber Slaves”.

12    The imputations alleged to arise from the relevant publications are said to be that:

a.     the applicant, in his capacity as the nephew of the Cambodian Prime Minister and a director of several companies within the Heng He Group in Cambodia, is complicit in a corrupt criminal enterprise by which companies within the Heng He Group, having ingratiated themselves with the applicant and elements of the Cambodian government, traffic human slaves from China to conduct global cyber scam operations from within Cambodia with impunity;

b.     the applicant, in his capacity as the nephew of the Cambodian Prime Minister and a director of several companies within the Heng He Group in Cambodia, is complicit in a corrupt criminal enterprise by which companies within the Heng He Group, having ingratiated themselves with the applicant and elements of the Cambodian government, imprison and horrifically abuse human slaves in compounds in Cambodia with impunity;

c.     the applicant is suspected on reasonable grounds by Australian police of drug trafficking;

d.     the applicant has accumulated extravagant wealth and assets in Australia from the proceeds of crime.

13    The Al Jazeera respondents deny that these imputations are conveyed but admit that they are defamatory if they are found to have been conveyed. They plead the defence of substantial truth, but only to imputation (c) (that the applicant is suspected on reasonable grounds by Australian police of drug trafficking). They also plead the defence of public interest.

14    The applicant alleges that the publication of the documentary has caused, or is likely to cause, serious harm to his reputation. His particulars of serious harm include the extent of the publication and the viewing of it on the internet, the gravity and scandalous nature of the imputations, the ostracism of his children at school which has occurred following the publication of the documentary, and the non-renewal of his RRV by the Department in the aftermath of the publication of the documentary.

The Nationwide News proceeding

15    In broad terms, the applicant has sued the Nationwide News respondents on the basis of certain publications in the Australian newspaper and on its website of an article which, in the newspaper, was entitled “Dictator’s Nephew and links to crime”.

16    The imputations alleged to arise from the relevant publications are said to be that:

a.     the applicant, in his capacity as the nephew of the Cambodian dictator and a director of several companies within the Heng He conglomerate, is complicit in a corrupt criminal enterprise whereby Heng He, having cultivated deep ties with the applicant and the Cambodian government, obtained safe harbour in Cambodia to traffic human slaves for the purposes of conducting a global online scam operation from within Cambodia;

b.     alternatively to (a), there are reasonable grounds to suspect that the applicant, in his capacity as the nephew of the Cambodian dictator and a director of several companies within the Heng He conglomerate, is complicit in a corrupt criminal enterprise whereby Heng He, having cultivated deep ties with the applicant and the Cambodian government, obtained safe harbour in Cambodia to traffic human slaves for the purposes of conducting a global online scam operation from within Cambodia;

c.     the applicant, in his capacity as the nephew of the Cambodian dictator and a director of several companies within the Heng He conglomerate, is complicit in a corrupt criminal enterprise whereby Heng He, having cultivated deep ties with the applicant and the Cambodian government, obtained safe harbour in Cambodia to imprison and violently abuse human slaves in compounds in Cambodia;

d.     alternatively to (c), there are reasonable grounds to suspect that the applicant, in his capacity as the nephew of the Cambodian dictator and a director of several companies within the Heng He conglomerate, is complicit in a corrupt criminal enterprise whereby Heng He, having cultivated deep ties with Mr Hun and the Cambodian government, obtained safe harbour in Cambodia to imprison and violently abuse human slaves in compounds in Cambodia;

e.     the applicant, a wealthy Cambodian, is attempting to facilitate the infiltration of Chinese organised crime networks into Australia;

f.     the applicant was suspected on reasonable grounds by the Australian Crime Commission of being involved in the importation of heroin into Australia, hidden inside loads of timber;

g.     the applicant has accumulated extravagant wealth and assets in Australia from the proceeds of crime;

h.     the applicant, a member of Cambodia’s elite, is laundering illicitly obtained wealth in Australia;

i.     the applicant’s business dealings warrant investigation by authorities in Australia because of his links to human trafficking, drug trafficking and Chinese criminal networks;

j.     the applicant, by reason of his links to human trafficking, drug trafficking and Chinese criminal networks, is a dangerous, menacing and fearsome person.

17    The Nationwide News respondents deny that these imputations are conveyed and deny that imputation (g) is defamatory, but admit that the other imputations are defamatory if they are found to have been conveyed. They plead the defence of substantial truth, but only to imputation (f) (that the applicant is suspected on reasonable grounds by the Australian Crime Commission of importing heroin into Australia hidden inside loads of timber) and imputation (i) (that the applicant’s business dealings warrant investigation because of his links to human trafficking, drug trafficking and Chinese criminal networks). They also plead the defence of public interest.

18    The applicant alleges that the publication of the newspaper article has caused, or is likely to cause, serious harm to his reputation. His particulars of serious harm include the extent of the publication and the viewing of it in print and on the internet, the gravity and scandalous nature of the imputations, the ostracism of his children at school which has occurred following the publication of the newspaper article, and the non-renewal of his RRV by the Department in the aftermath of the publication of the newspaper article.

The respondents’ position

The Al Jazeera respondents

19    The Al Jazeera respondents submit that these proceedings are precisely the types of cases to which s 10A of the Act is addressed. To use the language of senior counsel for Al Jazeera, the section is directed to cases which are “not worth the wick” in the sense that the costs of running them to final hearing would be out of all proportion to what is at stake. Particularly relevant in this regard is asserted to be the absence of evidence, or admissible evidence, that the applicant has in fact suffered any damage to his reputation by the publication of the material which is said to be defamatory.

20    The Al Jazeera respondents submit that it would be appropriate for the serious harm question to be determined separately because a determination in their favour on this issue would result in the whole of the applicant’s claims falling away, obviating the need for extensive interlocutory processes and a lengthy trial on all issues, thereby saving the parties and the Court the expenditure of significant resources. It is said that if the question of serious harm was to be left until trial there is a real risk that resources will have been utilised and costs incurred unnecessarily in the event that the Al Jazeera respondents’ position that the applicant has not suffered serious harm is ultimately found to be correct. Conversely the Al Jazeera respondents maintain that if they fail on the separate hearing of the serious harm question, little will have been lost. The applicant will have established an element of the cause of action which it would have had to establish at trial in any event.

21    The Al Jazeera respondents point also to the fact that the applicant is not ordinarily resident in Australia and spends very little time here; that he is, in effect, a “libel tourist”. They claim that by reason of the fact that the applicant is not present in Australia they are at risk on costs if they are successful in the litigation.

22    Although the Al Jazeera respondents seek a separate trial of the serious harm question only on the basis of r 30.01, rather than by invoking s 10A(5) and (6) of the Act, they submit that determining the serious harm element as a separate question would be consistent with the underlying policy of s 10A of the Act. That is to say, that s 10A evinces an intention that the serious harm question is ordinarily ripe for early separate determination (that it is the “default position”) in cases where there is controversy between the parties about whether that threshold is met. In submitting that such an approach is required by s 10A(5) of the Act the Al Jazeera respondents must be taken to contend implicitly that there are not special circumstances which would justify the postponement of the determination of the serious harm question to the trial.

23    To demonstrate the likelihood that the determination of the serious harm element of the cause of action may finally dispose of the proceeding, the Al Jazeera respondents advance the following matters on a preliminary basis:

(a)    first, that although the applicant’s particulars of serious harm draw heavily on the extent of publication, the evidence is that the scope of publication in Australia of the documentary was very limited, if not de minimis;

(b)    secondly, that although the applicant relies on the seriousness of the imputations, this is not to the point – the focus must be on the seriousness of the harm to reputation (as to which see Rader v Haines [2022] NSWCA 198 at [19] (Brereton JA, with Macfarlan JA and Basten AJA agreeing), in which respect the applicant’s evidence of harm to his reputation is limited, if not non-existent;

(c)    thirdly, that the applicant’s reliance on what he maintains has been said about him in his children’s school community in Melbourne and in the relevance of the publications to the non-renewal of his RRV is complicated by the fact that he sues not only in relation to the Al Jazeera documentary but also in relation to the newspaper article published by Nationwide News, and relies on substantially the same imputations. The particulars of serious harm in both proceedings are materially identical and the applicant seeks to attribute the specific harm he has particularised to both the newspaper article and the documentary. This, the Al Jazeera respondents say, cannot be correct. They submit that the applicant appears to be unable to tie the allegations of serious harm to a specific publication or establish causation between the alleged serious harm and the documentary. If the applicant cannot establish the cause of the alleged harm to his reputation it is submitted that he will fail to discharge his onus; and

(d)    fourthly, that prior to the publication of the documentary and the newspaper article there was substantial material already in the public domain about the applicant, including allegations that he was suspected by Australian police of involvement in a heroin trafficking and money laundering syndicate targeting Australia. In circumstances where the applicant’s particulars of serious harm include allegations that people have said words to the effect that he is a drug dealer and a drug lord, it is inherently more likely that these allegations were made as a result of other material in the public domain than the documentary, the circulation of which in Australia is said to be very small, if not de minimis.

24    Thus the Al Jazeera respondents submit that the overarching purpose in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) would be facilitated by ordering the determination of the question of the serious harm element of the cause of action as a separate question in accordance with r 30.01.

The Nationwide News respondents

25    The Nationwide News respondents also submit that this is an obvious case for the early and separate determination of the serious harm element. In addition it is their position that if serious harm is to be determined early, then it would be sensible and efficient for meaning to be decided at the same time.

26    On the utility of a separate determination of whether the applicant has suffered serious harm, they advance similar arguments to the Al Jazeera respondents. These include the need to focus on damage to reputation rather than just on meaning, referring in this regard to Rader and its approval of the observations of Lord Sumption JSC in Lachaux v Independent Print Ltd [2020] AC 612 at 623 [12] and 623 – 624 [14]. Lachaux concerned s 1(1) of the Defamation Act 2013 (UK) which, like s 10A(1) of the Act, imposes a requirement of “serious harm” to a claimant’s reputation as an ingredient in the cause of action for defamation.

27    The Nationwide News respondents submit that s 10A(4)-(6) of the Act are not in conflict with any law of the Commonwealth and that those sub-sections of s 10A are picked up by the Judiciary Act.

28    Recognising that a decision to order the hearing of a separate question in a proceeding pursuant to r 30.01 is discretionary, the Nationwide News respondents emphasise the following circumstances which they submit make it just and convenient for serious harm to be determined early and separately.

29    The first is that there is a real prospect of an early determination of serious harm being dispositive of the whole proceeding. In this regard they submit that:

(a)    the applicant is no more than a libel tourist, being only connected to Australia through his wife and his children and spending limited and infrequent time here;

(b)    it is not apparent that the relevant publications have ever been raised with the applicant by anyone;

(c)    in Victoria, the only State with which it is said the applicant has any real connection, there has been 4,710 views of the article on The Australian’s website and only 9,518 copies of the relevant edition of the newspaper were sold;

(d)    the applicant has not identified with any specificity the parts of the Australian community through which the “grapevine effect” has spread;

(e)    there is a problem of causation in circumstances where the applicant’s particulars of serious harm are substantially the same in the two proceedings;

(f)    the alleged reaction to the relevant publications seems to be directed to the applicant’s children, rather than to the applicant himself;

(g)    there was already a substantial body of material easily accessible on the internet which cast the applicant as a person involved in drug trafficking and money laundering and it is more likely that this material has formed the basis of adverse comment directed to his children than to the newspaper article; and

(h)    the particulars of serious harm concerning the applicant’s inability to obtain renewal of his RRV are tenuous at best.

30    The second matter said to support a separate determination of serious harm is that if the question were to be determined in favour of the respondents there would be significant savings of time and costs for the parties and the Court; the issue of costs being particularly relevant in circumstances where the applicant does not have assets in the jurisdiction against which an adverse costs order could be enforced.

31    The third matter said to support a separate determination of serious harm by the Nationwide News respondents is the amenability of the question to precise and narrow expression. It is submitted that it would involve the assessment of matters which are independent of other contested issues.

The applicability of section 10A(4)-(6) of the Act in this court

32    Insofar as the Nationwide News respondents contend that s 10A(4)-(6) of the Act is picked up by s 79 of the Judiciary Act and therefore operates in this Court, and that this provides a basis for the separate determination of the serious harm question, there is, at the very least, a serious question about whether this is so: see Selkirk v Hocking [2023] FCA 432 at [23]-[35] (O’Callaghan J) and the cases there cited. It is noteworthy in this regard that senior counsel for the Al Jazeera respondents did not submit that s 10A(4)-(6) of the Act is picked up by s 79 of the Judiciary Act.

33    Whatever may be said on this subject it is unnecessary, in my view, that the question be resolved on the present applications. This is because even if (as I doubt) it is correct to conclude that s 10A(4)-(6) is picked up by s 79 of the Judiciary Act, the reasons which cause me to conclude that it would not be just and convenient to order a separate determination of the serious harm question pursuant to r 30.01 would also cause me to be satisfied (if I needed to be) that there are special circumstances justifying the postponement of the determination of the serious harm question to the trial: see s 10A(5) and (6) of the Act.

The determination of serious harm should be left to trial

34    As the respondents properly accept, the assessment of whether to order that a particular question arising in a proceeding be heard separately from any other question pursuant to r 30.01 is discretionary. A variety of factors will bear upon the exercise of the discretion. Amongst others, it is important not to utilise the separate question procedure where questions are not “ripe” for separate determination. Also, the prospect that the separate determination of a question might give rise to significant contested factual issues at the time of the hearing of the separate question and at trial, and if there is an overlap between the evidence to be adduced on the hearing of the separate question and at trial, are both factors which tell against the making of such an order: see Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495; [1999] FCA 718 at [8] (Branson J). The separate question procedure should always be adopted with caution because it can be fraught with difficulties: Save the Ridge Inc v Commonwealth (2005) 147 FCR 97 at 103 [15] (Black CJ and Moore J).

35    The similarity between the principles that govern the circumstances in which an order may be made pursuant to r 30.01 and the existence of “special circumstances” for the purposes of s 10A(6) of the Act are readily apparent. They include considerations of costs, court resources, and, critically, the extent to which establishing the relevant matter (serious harm in the case of s 10A(6)) is linked to other issues for determination during the trial of the proceeding. Indeed, it may fairly be said that those non-exhaustive matters listed in s 10A(6) of the Act are not “special” at all and are entirely routine: see Selkirk at [39].

36    The need to exercise caution in determining particular questions separately from other questions reflects the law’s long experience that the attraction of trials of issues rather than of cases in their totality “are often more chimerical than real” and that separate trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question: see Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 55 [168]-[170] (Kirby and Callinan JJ) and AWB v Cole (No 2) (2006) 253 FCR 288 at 298 [38] (Young J).

37    Bearing these and other relevant principles in mind, there are several aspects of the present proceedings which, in my assessment, make them ill-suited to a separate determination of the question of serious harm. Indeed, when all relevant factors are weighed in the balance I am unable to conclude that it would be just and convenient to make orders that the serious harm element of the cause of action in both proceedings be determined separately: Reading Australia at [9]. This would be so even if, as the Nationwide News respondents contend, meaning were also to be determined at the separate hearing.

The applicant’s serious harm case

38    To begin with, for the purposes of the present applications at least, I am not convinced that the applicant’s serious harm case in both proceedings is necessarily as weak as the respondents contend. At least the following matters are relevant in this regard.

39    First, it is not at all clear, on the presently available evidence, that the applicant is properly to be regarded as a libel tourist. Whatever the extent to which he has been present in Australia over the last 30 years, he does appear to have a significant connection to this country and at least arguably a reputation here, not least given the presence of his wife and children and his maintenance of a family home in Melbourne.

40    Secondly, there is the seriousness of the imputations said to be conveyed by the documentary and the newspaper article. The starting point in any action for defamation is what the words mean. This will, together with the extent of publication, inform how serious the harm is. The imputations pleaded here are of a particularly grave kind. They include allegations that the applicant is involved in drug trafficking and that he is complicit in a corrupt criminal enterprise engaged in the trafficking of slaves to work in “cyber-scam” operations based in Cambodia. There has been no application to strike the imputations out. Whether they arise is a triable issue. If the imputations pleaded are found to have arisen, and it has not been contended on either of these applications that the relevant publications did not have the capacity to convey the pleaded imputations, or some of them, they would have the capacity to cause serious harm to the applicant’s reputation.

41    Although it may be accepted that in considering whether there has been serious harm the focus should be on the damage to reputation and not the imputations themselves (as to which see Rader at [19]), if it is concluded that the imputations are made out it will be open to the Court to draw inferences based on the totality of the circumstances, including the seriousness of the imputations conveyed and the inherent tendency of them to cause harm.

42    As much was accepted by Lord Sumption on behalf of the Court in Lachaux. While recognising that what had to be demonstrated was actual harm to reputation, his Lordship considered that proof of harm to reputation could arise from a combination of the meaning of the words, the extent of publication, and the inherent probabilities: Lachaux, at [21]. As has often been observed, libel can be difficult to track and can lurk in hidden places, its reach hard to measure: see Ley v Hamilton (1935) 153 LT 384 at 386 (Lord Atkin); Cassell & Co Ltd v Broome [1972] AC 1027 at 1071 (Lord Hailsham of St Marylebone LC); Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [786] (Wigney J).

43    Thirdly, there is the nature and extent of the relevant publications. Critically, both proceedings involve mass-media publications. It may be observed at a level of generality that it is difficult to see how it would ever be appropriate to deal with serious harm as a separate question where there are mass media publications which, at least arguably, convey imputations of the most serious kind.

44    Nonetheless, both sets of respondents sought to argue on this application that the publication numbers “are not large” (Nationwide News), or were “very small, if not de minimis” (Al Jazeera). This will no doubt be a matter to be developed at trial, but for present purposes I am not satisfied that either contention should be accepted. The newspaper article in the Nationwide News proceeding does appear to have been published widely. The relevant print edition of The Australian sold 47,436 copies across Australia and the estimated readership of that newspaper on a Friday in 2022 was 367,000. In Victoria alone, 9,518 copies of The Australian were sold. The online version of the newspaper article received approximately 19,484 page views since 5 August 2022, 4710 of which occurred in Victoria. Contrary to the submissions of the Nationwide News respondents, these are large numbers. They would be sufficient to warrant an award of significant damages were the applicant to succeed in his action against the Nationwide News respondents.

45    Although the position in relation to the documentary in the Al Jazeera proceeding may be less clear, it is not apparent on the present evidence that it would be correct to characterise the relevant publications as very small or de minimis. The Al Jazeera website and the Al Jazeera Youtube channel is heavily patronised. Insofar as it is contended that the documentary was only published in Australia on a “limited” basis, I accept that the data advanced in support of this contention for present purposes is inconclusive. Mr Bartlett’s affidavit seems to concede that at least part of the documentary has been viewed on an Al Jazeera webpage by people located in Australia 978 times as at 30 March 2023, and that there had been thousands of views of the documentary on the YouTube page by people located in Australia as at 30 March 2023 (1,345 in Melbourne, for example).

46    As the applicant submits, these are not insignificant numbers and it would seem that they continue to grow. Statistics as to the “average” global viewing duration of the documentary directed to proving that not all viewers would have watched the documentary for long enough to hear the reference to the applicant at the 39 minute and 37 second mark say nothing about whether the viewing duration reflects continuing viewership measured from the commencement of the documentary or total viewing duration for viewers who may have watched different parts of the documentary. Indeed, the figures appear to be silent as to how many people watched the entirety of the documentary. And the figures presumably also fail to take account of the spread of whatever imputations may have been conveyed by the documentary on the grapevine in circumstances where there appears to be at least some evidence that this has occurred.

47    Fourthly there is what the applicant contends has been the delay in the renewal of his RRV. Having regard in particular to the lodgement of the applicant’s RRV renewal application on 8 July 2022 and the history of relatively speedy processing of these applications, combined with the fact that the documentary was published on or about 15 July 2022 and the newspaper article on or about 5 August 2022, for present purposes I would not confidently conclude that this delay is unrelated to the publication of the documentary and the newspaper article. Were this to be so it is difficult to see how it could not be said to constitute serious harm.

48    For all these reasons it may be accepted, as the applicant submits, that in both cases the inquiry into serious harm would not be straightforward. It would need to extend to the gravity of the meanings conveyed by the relevant publications, the inherent tendency of those meanings to cause harm to the applicant’s reputation in Australia, the extent of the publications, including the spread of whatever imputations are proved on the “grapevine”, the persons to whom the publications were made or to whom the imputations came to be communicated on the “grapevine”, the applicant’s personal circumstances, evidence of the actual impact of the publications on the persons to whom they were made or who otherwise became aware of the substance of them, and the “inherent probabilities” involved. It cannot readily be concluded at this stage that the applicant’s case is weak in relation to this element of the cause of action.

49    Insofar as the respondents raise the issue of a causation problem for the applicant in establishing serious harm given the publication of both the newspaper article and the documentary, I do not consider that this issue is one which is of such significance at the present time that it forms a basis for concluding that the applicant is unlikely to have suffered serious harm to his reputation and thus that determination of the serious harm element may finally dispose of the proceedings. The respondents’ submissions on this point do not weigh heavily in favour of a separate determination on the serious harm question.

50    The same is true in relation to the existence of what the respondents contend is historical material in the public domain which demonstrates that the applicant already had a bad reputation at the time of the publication of the material on which he now sues. Whether evidence of this kind would ever be admissible at trial on the question of whether the applicant had suffered serious harm is, in accordance with established principle, plainly a contestable issue. Although the point does not need to be determined now, there must be real doubt that the evidence in question would be admissible. As to the well understood limitations on the use of evidence of reputation, see Associated Newspapers Ltd v Dingle [1964] AC 371; [1962] 2 All ER 737; Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547 at 582-583 [176]-[180] (Gleeson JA); Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632 at 663-664 [94] (Besanko, Bromwich and Wheelahan JJ); and Banks v Cadwalladr [2023] 3 WLR 167 at 184 [59] (Warby LJ, with whom Dame Victoria Sharp P and Singh LJ agreed). In Banks at [59] the Court of Appeal of England and Wales said the following on this very point:

However, the authorities set clear limits on the means by which a relevant bad reputation can be proved. Other publications to the same effect as the words complained of, or relating to the same incident as referred to in those words, are inadmissible for this purpose, and this rule covers previous publications by the same defendant: Gatley (op cit) at para 34-086 citing Dingle [1964] AC 371 and Lachaux SC [2020] AC 612 at para 22.

51    Leaving to one side for present purposes the admissibility of this historical material on this application, it is clear that such evidence will be the subject of objection by the applicant at trial, and that the applicant will seek to lead further evidence about the damage to his reputation. The “inherent probabilities” (to use the language of Lord Sumption in Lachaux) will also be relevant. The respondents’ submissions as to this earlier material already in the public domain do not weigh heavily in favour of a separate determination on the serious harm question in these proceedings.

Duration, complexity and cost of a separate hearing

52    The complexity of the necessary inquiry into whether the applicant has suffered serious harm and the extent to which it is linked to other issues to be determined is another reason not to order that this question be the subject of separate determination, even if the meanings of the relevant imputations were to be determined at the same time.

53    Although it may be accepted that a preliminary determination of the separate harm question would inevitably be less expensive and time consuming than proceeding directly to a final hearing, the utility of such a course would turn entirely on the outcome. As the applicant submits, if he is successful no real economy will have been achieved. Having regard to the complexity of the inquiry into serious harm, substantial costs would have been imposed on the parties at the outset and prior to mediation. There would almost inevitably be duplication of costs and evidence at the subsequent trial in circumstances where the applicant says he intends to adduce evidence from up to ten witnesses on the question of harm as well as challenge the correctness of Rader as to the applicable test, and the respondents have raised difficult issues in relation to causation.

54    Counsel for the respondents submitted that on the present state of the evidence they would be unlikely to cross examine. That submission does not, of course, bind the respondents in relation to the more complete evidence that would likely be adduced at the trial of the separate question, including any viva voce evidence should it be adduced in that form. It is difficult to see that having regard to all these matters a separate hearing on serious harm could be accommodated in the two days which the respondents optimistically suggest. Indeed, in my assessment such a hearing is more likely to require at least four days, particularly when the need for translators is taken into account.

Possible duplication of evidence

55    A further matter which weighs against determining serious harm separately is the likelihood that there would be a duplication in the evidence were the serious harm question to be resolved in favour of the applicant and a full trial to be necessary.

56    As the applicant contends, it is likely that any evidence going to serious harm would also be relevant to the assessment of damages. Depending on findings made on the hearing of the separate question it may be that it would become necessary for another Judge of the Court to hear the trial of the proceeding and the further evidence from the same people in relation to damages. Plainly this would be undesirable. The Court would be inconvenienced, as would the relevant witnesses.

Al Jazeera respondents do not seek a separate determination of meaning

57    The fact that the Al Jazeera respondents do not also seek a separate hearing on meaning is another reason not to order the separate determination of the serious harm question. As has been canvassed, serious harm is intrinsically tied up with the question of meaning and the extent of publication. It would not be tenable for the Court to proceed on an assumption in the Al Jazeera proceeding that the alleged meanings are conveyed where those substantially similar meanings are in contest in the Nationwide News proceeding. A court should not readily determine a separate question based on assumed facts, particularly where the parties will be free to dispute those facts at a separate trial: Attia v British Gas Plc [1988] 1 QB 304 at 321 (Bingham LJ). In the context of courts exercising federal jurisdiction, see Rainsford v Victoria (2005) 144 FCR 279 at 291 [36] (Kenny J) and Bass v Perpetual Trustee Co Ltd (1999) 198 CLR 334 at 357-359 [49]-[56].

Other considerations

58    Although I do not attribute significant weight to the difficulties which might be experienced by the applicant’s son in giving evidence this year at a separate hearing on serious harm, and the fact that by reason of his visa status the applicant may not be able to give evidence in person at such a hearing, I accept that these are also factors which, in the circumstances of this case, weigh against a separate hearing at the present time on serious harm. It may be relevant to observe that the respondents have not indicated that they would consent to the applicant giving evidence by videolink.

59    The respondents’ submission that by reason of the fact that the applicant is not ordinarily resident in Australia they are at risk on costs if they are ultimately successful in the litigation is also not a factor which weighs in favour of a separate hearing on serious harm. Exposure of this kind is properly dealt with by the provision of security for costs, as has occurred and will presumably continue to occur.

60    Whatever may be said about the underlying policy of s 10A of the Act and whether it evinces a Parliamentary intention that serious harm be determined as a preliminary question when there is controversy between the parties about whether that threshold is met, I am satisfied that on the facts of these cases that course would not be just or convenient or otherwise consistent with s 37M of the Federal Court of Australia Act. As I have observed, if s 10A(5) of the Act is to be taken to have been picked up by s 79 of the Judiciary Act I would regard the reasons why it would not be appropriate to order a preliminary trial of the serious harm element of the cause of action to constitute “special circumstances” for the purposes of s 10A(5).

The applicant’s evidential objections

61    As was mentioned at the outset, the applicant objected to certain evidence of Messrs Bartlett and Quill. The evidence comprised, first, historic media coverage of the applicant (see Bartlett, [29]-[31] and [34] and Quill, [20]). This evidence was adduced to support the submission that any damage to the applicant’s reputation was caused by this earlier material rather than the publications sued on and, by reason of what was said to be his poor reputation, the publications on which the applicant sues could not have caused him serious harm. Objection was also taken in relation to evidence of Mr Bartlett concerning adverse statements made about the applicant in the Federal Parliament (see Bartlett, [32]-[33]). This evidence was adduced for the same purpose as the historic media coverage.

62    Initially the respondents pressed all the evidence to which objection was taken, however as the argument developed the evidence concerning statements made about the applicant in Parliament and objected to on the basis of parliamentary privilege receded in significance. Paragraphs 32 and 33 of Mr Bartlett’s affidavit, together with annexures PLB 18 and PLB 19, were thus ultimately not pressed by the Al Jazeera respondents.

63    Insofar as the evidence comprising the historic media coverage of the applicant was concerned, the applicant objected to this material on the basis that it was inadmissible. It was submitted that a defendant has never been permitted to rely on news articles in the public domain as evidence of a pre-existing bad reputation on the part of a plaintiff – a plaintiff’s reputation is what people actually think of him or her, not what has been written on that subject: Chappell v Mirror Newspapers (1984) Aust Torts Reports 80-691.

64    It was further submitted by the applicant that there was no evidence that anyone had read or observed the press material on which the respondents relied, all of which was published well prior to the impugned articles. The applicant contended that there was no evidence that anyone had raised this earlier material with his children, and that the Court could not sensibly draw an inference that it must have been this material (rather than the publications sued on) which had caused other children to bully and tease his children. The applicant maintained that this material did not surmount the relevance bar or, if it did, it was of such tenuous probative value as to warrant discretionary exclusion pursuant to s 135(c) of the Evidence Act 1995 (Cth) (undue waste of time).

65    In answer to this the respondents submitted that they were entitled to rebut the contention that their publications caused damage to the applicant’s reputation by pointing to independent causes of the alleged damage. In this regard they relied on certain observations of Bromwich J in Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361 at [83]-[85]. The respondents submitted that they were seeking to isolate the damage of the relevant publications from the damage caused by the earlier publications, where it is possible to do so. They contended that it is open to them to adduce material to show that it was notorious that by the time of their publications the applicant had already been accused on reasonable grounds of, amongst other things, being a drug trafficker. The relevant articles exhibited to the affidavits were said to be relevant for this purpose and in order for the respondents to test the applicant’s evidence that he suffered serious harm to his reputation from the publications on which he has sued rather than any of the earlier publications.

66    Whatever may be said about the utility of the relevant evidence is ultimately a question which will have to be resolved at the trial by reference to established principles, including those to which reference has been made above at paragraph 50. For present purposes, however, I accept that in circumstances where both parties addressed submissions on the extent to which the Department may have had regard to material in the public domain in the nature of some of this earlier media coverage in considering the applicant’s visa application, it cannot be concluded that the material sought to be excluded is irrelevant on this application. It was relevant at least for the limited purpose of demonstrating what evidence the respondents would have sought to lead on a separate hearing of the serious harm question, were one to have been ordered. I would therefore disallow the applicant’s objection to paragraphs 29-31 and 34 of Mr Bartlett’s affidavit and paragraph 20 of Mr Quill’s affidavit.

Orders

67    The respondents’ interlocutory applications will be dismissed. My tentative view, subject to any submissions, is that the applicant should have his costs of and incidental to the applications. The proceedings will be listed for case management hearing for the purposes of making any further necessary directions or orders.

Associate:

Dated:    15 September 2023

SCHEDULE OF PARTIES