Anthony Cox
The
defamation
case currently being conducted by a prominent Islamic halal certifier,
El Mouelhy, against Kirralie Smith who runs Halal
Choices, and other
members of the Q Society, has reached an interesting point. El Mouelhy is no
stranger to the court room and has litigated on halal matters before which if nothing else gave an indication
of how much money is involved in the halal certification process which
world-wide is astounding.
reasonably
suspected of providing financial support to terrorist organisations and as part of a conspiracy to destroy Western
civilisation from within.
On June 12
interim orders were made by the Supreme Court. These orders acted to narrow the
scope of the claim by El Mouelhy against Smith. The Q Society describes the
result as:
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.
