Federal Court of Australia

Birenbaum v H & A Nominees Pty Ltd trading as Cairo Takeaway (strike out application) [2025] FCA 1345

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 4 September 2025 be dismissed.

2.    Costs of the interlocutory application be reserved.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from the transcript

BROMWICH J:

1    The respondents, by an interlocutory application dated 4 September 2025 (varied verbally to a limited extent at the hearing), seek an order under r 16.21(1)(c), (d) and/or (e) of the Federal Court of Australia Rules 2011 (Cth) striking out the parts of the applicant’s statement of claim by which he pleads to the element of serious harm for the tort of defamation, created by s 10A(1) of the Defamation Act 2005 (NSW) in the following terms:

10A Serious harm element of cause of action for defamation

(1)    It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.

2    Paragraphs 33 to 41 of the statement of claim, being those sought to be struck out, are substantial in volume and detail. Each paragraph contains many subparagraphs, and in total occupy about 25 of the 45 pages of the statement of claim. The complaint made about those paragraphs at the strike out stage concerns not their contents, but the absence from them of what is contended to be indispensable, namely a pleading of the reputation of a person bringing a defamation proceeding, prior to the publication of the matters complained of as being defamatory. The respondents assert that following the enactment of s 10A(1) of the Defamation Act, that is now a material fact that must be pleaded and particularised. They assert that irrespective of whether this is a general requirement as principally contended, it is a requirement that arises in this case. The applicant denies that this is a general requirement, denies that in any event it arises in this case and contends, as a matter of case management, that in any event the question of serious harm is best addressed by him serving his evidence on this topic and by the respondents filing their defence in the meantime.

3    In the alternative to a strike out, the respondents seek, pursuant to r 16.45(1) of the Rules, and to a degree narrowed verbally at the hearing, an order that the applicant provide particulars as to the nature and extent of the reputation or reputations the applicant says he had prior to the first publication sued upon, the place(s) and circle(s) in which he had that reputation, if (and if so the extent to which) he was reputed to have engaged in the conduct or conduct not substantially dissimilar to the subject of each imputation pleaded at [7] of the statement of claim; and if so reputed, the place(s) and circle(s) in which he had that reputation.

4    Additionally, the respondents seek an order that the applicant furnish further and better particulars of parts of the pleadings related to serious harm, as identified in correspondence.

5    The background facts contained in the respondents’ submissions in chief are not disputed for the purposes of this application only and can be conveniently reproduced as follows:

[2]    This Application seeks orders arising from what the respondents say are deficiencies in the manner in which the [statement of claim] has been drafted.

[3]    The respondents rely on the Affidavit of Stewart O’Connell affirmed on 5 September 2025 (O’Connell affidavit).

[4]    Cairo Takeaway, the first respondent, is an Egyptian restaurant on Enmore Road in Newtown. Mr Hesham El Masry, the second respondent, is the sole director and shareholder of Cairo Takeaway and Mr Talaat Yehia, the third respondent, is a chef at Cairo Takeaway.

[5]    The respondents are well known to be publicly ‘pro-Palestinian’ and have been outspoken in respect to their opposition to the ongoing war in Gaza. The applicant has cultivated and has achieved a public profile as being ‘pro-Israeli’ in the sense of supporting and advocating for the State of Israel generally and with respect to the ongoing war in Gaza.

[6]    On 11 February 2025 the applicant and a reporter, photographer and videographer from the Daily Telegraph arrived in the vicinity of Cairo Takeaway. The applicant entered the restaurant wearing a white baseball cap with a blue Star of David clearly visible on the front panel of the cap and a white t-shirt upon which a gold Star of David pendant sat, clearly visible. The applicant also wore sunglasses and carried a green grocery bag with something inside it.

[7]    The applicant entered Cairo Takeaway around midday and placed a takeaway order for a hibiscus tea. The applicant collected his takeaway order but did not immediately leave the restaurant. The applicant moved to the back of the restaurant where he remained for over a minute before moving back to the front of the restaurant and exiting. As he exited he entered into a conversation with a waitress who was standing outside the front door of the restaurant and was looking out at the street.

[8]    The applicant then walked down the street and returned a short time later with a Daily Telegraph reporter, photographer and a videographer. The Daily Telegraph reporter and photographer entered the restaurant, and the reporter asked some questions of the waitress, and the photographer took photos. The interaction with the waitress did not end amicably. The Daily Telegraph team and the applicant left a short time after they arrived and continued up Enmore Road. They were followed up the street by the waitress who was filming parts of the interaction on her phone. Mr Yehia arrived a short time later and spoke with the applicant and the Daily Telegraph team.

6    It is important to note at the outset, as pointed out by the applicant, that the requirement of pleadings in r 16.02(1)(d) of the Rules, which is often carried over to particulars of allegations (but not evidence) is not to plead every material fact upon which an applicant will rely, but rather only to:

state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; …

7    Turning first to the strike out application, the respondents rely upon what was said in Peros v Nationwide News Pty Ltd (No 2) [2024] QSC 83 (Applegarth J) at [7] to establish a general obligation to plead reputation. His Honour said:

In any event, the “serious harm” element of the cause of action requires a plaintiff to plead and prove that the publication of the defamatory matter about the plaintiff “has caused, or is likely to cause, serious harm to the reputation of the [plaintiff]”. Therefore, the reputation of the plaintiff is a material fact that must be pleaded with appropriate particulars. So too is the serious harm that has been caused or likely to be caused to the pleaded reputation.

8    In my view that assertion entails a misreading of [7]. The first sentence obviously correctly states what is required of all plaintiffs (in this Court, applicants) by s 10A(1) of the Defamation Act. The second sentence is referring to the particular plaintiff in that case, rather than being a universal observation. That much is clear when regard is had to the prior reproduction of the pleading of serious harm in the amended statement of claim in that case, reproduced at [3] of Peros (No 2), his Honour’s comments at [4] and his Honour’s observations about and resolution of the ambiguity in the pleadings at [18] to [24]. The plaintiff in that case was required to plead his reputation because that was a live issue in the case that he brought, and in particular, in the way that he pleaded his case. The respondent also relied upon the fact that the applicant in Mond v The Age Company Pty Ltd [2025] FCA 442 pleaded his prior (good) reputation. It is apparent that the applicant in that case chose this path because his prior reputation was a fact on which he intended to positively rely. I do not consider this forensic choice assists the respondent. I therefore find that there is no such general requirement to plead an applicant’s prior reputation for the purposes of s 10A(1) of the Defamation Act.

9    Nor am I satisfied that it is necessary or appropriate to require a pleading of prior reputation to take place in this case. In reaching that conclusion, I reproduce and rely upon the further observations by Applegarth J in Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192 as follows (footnotes incorporated):

The state of the claimant’s reputation prior to the publication

[67]    If a publication injures a claimant only in a certain sector, then evidence of reputation must relate to that sector: Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83 at [17]; O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 at 91[5]. For example, the claimant’s reputation as a talented musician may be unaffected by a report that she is a robber, but her reputation for being law-abiding will be, and is likely to be seriously harmed.

[68]    A claimant is not required to prove that he or she had a good reputation before attempting to jump the s 10A hurdle. This must be so, otherwise the remedies and vindication given by the law of defamation would not be available for someone with a somewhat tarnished reputation, or even a person whose reputation was under a cloud because of earlier publications and whose reputation was completely destroyed by the subject publication.

[69]    A party may have a reputation, or reputations in different sectors of their life, among members of the community in which they live, by persons who know them, or by persons who know of them. However, to have a remedy in defamation, a person is not required to prove that he or she had a pre-existing reputation among all of the recipients of the defamatory publication. For example, a citizen who has never come to public prominence can complain about the harm to reputation caused by a mass media publication that is communicated to all parts of the nation. In Lachaux v Independent Print Ltd and another [2020] AC 612 at 628 [25], Lord Sumption said:

“… there is no principled reason why an assessment of the harm to the claimant’s reputation should not take account of the impact of the publications on those who had never heard of him at the time. The claimant’s reputation is harmed at the time of publication notwithstanding that the reader or hearer knows nothing about him other than what the publication tells him.”

[70]    A person with a bad general reputation or a bad reputation in a relevant sector will struggle to prove that a defamatory publication caused serious harm to that already badly damaged reputation.

[71]    A person’s bad reputation is relevant to the determination of serious harm. In following English authorities, Besanko J (with whom Anderson and O’Sullivan JJ agreed) stated in Selkirk v Wyatt [2024] FCAFC 48 at [98]:

“… a prior bad reputation is relevant to the decision whether the publication has caused, or is likely to cause, serious harm to the claimant. It may mean the difference between the prior bad reputation and the harm caused by the publication is not serious harm.”

[72]    Besanko J also stated that the English cases were authority for the proposition that if the defendant seeks to rely on prior bad reputation in the context of the issue of serious harm, then the onus is on the defendant to prove that matter. I defer discussion of how a bad reputation is proven in the context of “serious harm” and in the different, but related, context of mitigation of damages. I will address that matter in discussing the rule in Dingle.

10    As Applegarth J noted in the first sentence of [68] of Peros (No 3) reproduced above, a person bringing a defamation proceeding is not required to prove good reputation before attempting to meet the element of serious harm in s 10A(1) of the Defamation Act. If that is not universally required to be proved, it cannot universally be required to be pleaded. I reject the respondents’ submission that the first sentence of [68] is confined to not requiring proof of “good” reputation and says nothing about the need to prove reputation more generally, including no reputation at all, or a particular reputation in a particular sector.

11    Of course, in any given case, it may turn out that proof of prior reputation is necessary in order to prove the serious harm element. That is a forensic judgment for the applicant in this case to make in the evidence he seeks to adduce. It may also sometimes be required to be pleaded, as was the case in the proceeding brought by Mr Peros, because of the highly unusual circumstances of that case.

12    I do not consider that it is necessary for the applicant to plead any reputation he had prior to the publications, or more precisely, the first publication, in order to give the respondents fair notice of the case to be made against them. I consider that the same reasoning and conclusion applies to the alternative order for particulars sought by the respondents.

13    It is important that I make clear that a conclusion that prior reputation does not have to be pleaded or particularised does not means that the respondents are not required to be fully appraised of the case that the applicant brings as to serious harm, including as to the applicant’s prior reputation if that is relied upon. Quite to the contrary, this must be fully disclosed by the service of evidence by the applicant.

14    It is important to add that the applicant was specifically asked, through senior counsel appearing for him at the interlocutory hearing, whether, independently of the strike out and particulars application made by the respondents, he wished to revisit and amend or otherwise replead his statement of claim. I was advised that he did not. This was despite me expressing some concerns about the way in which the serious harm aspect was pleaded at [33] to [41] of the statement of claim, including that those paragraphs are virtually impossible for the respondents to plead to, because they cannot know the scope of the allegations as pleaded so as to be able to actually admit or deny them, or part of them. Senior counsel made it clear that no issue would be taken if the respondents availed themselves of r 16.07(3) and instead plead that they do not know and therefore cannot admit the allegations. That is then taken to be a denial, an outcome reached at the effective election of the applicant. And, of course, the evidence that can ultimately be adduced may end up being confined in some way by the pleading of the statement of claim that the applicant has chosen not to revisit.

15    Finally, I turn to the additional request for further and better particulars, narrowed by negotiation between the parties to refer to [10] (f), (g), (h) and (i) of the letter in evidence dated 29 August 2025, sent by the respondents’ solicitors to the applicant’s solicitors. While the request is not inherently unreasonable, even if it may cross over into the territory of particulars of evidence, I consider this is better met by the provision of evidence. The above observations apply equally to that evidence.

16    It follows that the respondents’ interlocutory application must be dismissed. In my view, the nature of this case, the way that the statement of claim has been drafted as to serious harm, the early stage at which these issues have arisen, and the way in which the hearing of the application gave rise to and enabled important case management issues to be addressed are such that costs should be reserved.

Associate:

Dated:    30 October 2025