reasonably suspected of providing financial support to terrorist organisations and as part of a conspiracy to destroy Western civilisation from within.
Justice McCallum handed down an oral judgment at 2:00pm today. We were quite successful.
There were two central issues in consideration:
1. Should the plaintiff (Mr Mohamed El-Mouhely) be obliged to provide particulars of "worldwide" publication?
At the previous hearing we argued that the Plaintiff must particularise the jurisdictions and the people within those jurisdictions who accessed the videos overseas (except for the US). Her Honour found in favour of our argument - that it was unacceptable to allow a relaxation of the rules simply because the Plaintiff has submitted that particularising the publication areas is "mission impossible".
Therefore this cause of action cannot be maintained unless further particulars are provided by the Plaintiff. Her Honour referred to the submission of Mr Connell (acting for the Plaintiff) that the Plaintiff has business connections and offices overseas and that his reputation may have been affected by virtue of the videos being viewed in these places where he conducts business. It was held that those submissions only serve to emphasise that the Plaintiff should be in a position to provide further particulars as to publication of the videos worldwide. Mr Connell then added that there was a case in Malaysia where a business associate of the Plaintiff mentioned the videos. Her Honour said that there may be substance in this argument if the Plaintiff can prove that he in fact lost business contracts as a result of the overseas interactions on the basis of his inclusion in the videos. Mr Connell did not confirm if his client had lost any business - only that he had been approached by someone in Malaysia regarding the videos.
2. Should some of the imputations be struck out?
Her Honour first dealt with the threshold issue which involved an argument that we could not have another "bite of the cherry" and resubmit objections to imputations. However, it was allowed on the basis that issues as to the form of imputations should be resolved before a final hearing. Her Honour then made a statement to the effect that the videos reflect the "complexity of public discourse" in the field of political values - in other words, it is difficult to define values. In the circumstances Her Honour allowed our objections to the imputations to be heard again. The relevant imputations below and reflect some of the unusual and difficult aspects of this case:
16(c) "That the plaintiff is a person who has values opposed to the fundamental human right and Australian value of freedom of religion and Australian values of choice, a fair go and freedom" - this was held to be too general and thus was struck out.
16(d) "That the plaintiff was part of a push for instituting repressive Sharia law in Australia" - while expressed in general terms, this imputation was upheld and will be left to the jury.
16(e) "That the Plaintiff was part of a global push for Islamisation calculated to destroy Australian values of freedom and tolerance" - this was held to be "nonsensical" and thus was struck out.
25(b) "That the Plaintiff sought to erode Australian values of freedom of religion, speech and democracy" - this failed to distill a defamatory sting, was unclear and therefore was struck out.
25(c) "That the Plaintiff was part of a conspiracy to destroy Western Civilisation from within" - this is incapable of being pleaded to and thus was struck out.
25(d) "That the Plaintiff was part of a conspiracy to achieve World domination" - for the same reasons as 25(c) - the difficulty is that the imputation fails to distill itself from the "elusive rhetoric" of the video and thus was struck out. Overall this is a very sound result with 5 out of the 6 imputations being struck out. This should help simplify the final hearing and avoid a number of impossible arguments that seemed destined to lead to difficult decisions and appeals.
While the opposing side will now have another opportunity to amend their statement of claim, it will bring us much closer to a final hearing.