District Court

New South Wales

Case Name:

Mosslmani by his tutor Karout v DailyMail.com

Australia Pty Ltd (ACN 166 912 465); Mosslmani by
his tutor Karout v Nationwide News Pty Ltd (ACN 008
438 828); Mosslmani by his tutor Karout v Australian
Radio Network Pty Ltd (ACN 065 986 987)

Medium Neutral Citation:

[2016] NSWDC 264

Hearing Date(s):

12 October 2016

Date of Orders:
Decision Date:
Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

See [119]

Catchwords:

TORT defamation imputations form and capacity

no issue of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 14.30

and 28.2

Cases Cited:

Abou-Lokmeh v Harbour Radio Pty Ltd [2016]

NSWCA 228
Berkoff v Burchill [1996] 4 All ER 1008
Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n
Charleston v News Group Newspapers Ltd [1995] 2
AC 65
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Cornwell v Channel Seven Sydney Pty Ltd [2016]
NSWCA 255
Drummoyne Municipal Council v Australian
Broadcasting Corporation (1990) 21 NSWLR 135
Ettingshausen v Australian Consolidated Press Ltd
(1991) 23 NSWLR 443
Fairfax Media Publications Pty Ltd v Alex [2014]

NSWCA 273
General Steel Industries Inc v Commissioner for
Railways (NSW) (1964) 112 CLR 125
Hanson-Young v Bauer Media Ltd [2013] NSWSC
1306
Hanson-Young v Bauer Media Ltd (No 2) [2013]
NSWSC 2029
Kelly v John Fairfax Publications Pty Ltd [2003]
NSWSC 586
McDonald v The North Queensland Newspaper Co
Ltd [1997] Qd R 62
New South Wales v Williams [2014] NSWCA 177
Scali v John Fairfax Group Pty Ltd (Supreme Court of
NSW, Levine J, 15 July 1993)
Singleton v Ffrench (1986) 5 NSWLR 425
Toben v Milne [2014] NSWCA 200
Younan v Nationwide News Pty Ltd [2013] NSWCA
335
Texts Cited:

J Dean, Hatred, Ridicule or Contempt: A book of libel

cases, Pan Books, 1953

Category:

Procedural and other rulings

Parties:

Plaintiff: Ali Ziggi Mosslmani (also known as Ziggy) by

his tutor Zeinab Karout
Defendant in 2016/210991: DailyMail.com Australia
Pty Ltd (ACN 166 912 465)
Defendant in 2016/210996: Nationwide News Pty Ltd
(ACN 008 438 828)
Defendant in 2016/211033: Australian Radio Network
Pty Ltd (ACN 065 986 987)

Representation:

Counsel:
Plaintiff: Mr R Rasmussen
Defendant in 2016/210991 and 2016/211033: Mrs L E
Barnett
Defendant in 2016/210996: Ms L Mullins (solicitor)
Solicitors:
Plaintiff: Saab Law Group
Defendant in 2016/210991: Mark OBrien Legal
Defendant in 2016/210996: News Limited
Defendant in 2016/211033: Banki Haddock Fiora

File Number(s):

Mosslmani by his tutor Karout v DailyMail.com

Australia Pty Ltd (ACN 166 912 465)

(2016/210991);Mosslmani by his tutor Karout v
Nationwide News Pty Ltd (ACN 008 438 828)
(2016/210996);Mosslmani by his tutor Karout v
Australian Radio Network Pty Ltd (ACN 065 986 987)
(2016/211033)
Publication Restriction:

None

JUDGMENT
1 The defendants in three separate defamation proceedings relating to
publications made on 21 July 2015 challenge the form and capacity of the
imputations pleaded to arise from each of the matters complained of.
2 I have attached the matters complained of published by the defendants as
annexures to this judgment.
The DailyMail.com Australia Pty Ltd publication
1 The imputations pleaded (at paragraph 3 of the statement of claim) are as
follows:
i

That the plaintiff, by reason of permitting himself to be

photographed with a mullet hairstyle, has justifiably
exposed himself to ridicule by the defendant.

ii

That the plaintiff, by reason of permitting himself to be

photographed with a mullet hairstyle, has justifiably
exposed himself to ridicule by the public.

iii That the plaintiff, by reason of his mullet hairstyle, has

justifiably exposed himself to ridicule by the defendant.
iv That the plaintiff, by reason of his mullet hairstyle, has
justifiably exposed himself to ridicule by the public.
v

The plaintiff is a joke.

vi The plaintiff is a ridiculous person.

vii The plaintiff is a ridiculous person because he wears a
controversial haircut.
1 The defendants objections, as noted in correspondence and oral submissions,
were as follows:
a Imputations (i) and (ii) and (vii) are not reasonably capable of
being conveyed.
b Imputations (i) (iv), (v) and (vi) are ambiguous and do not differ

in substance, and should be struck out.

The Nationwide News Pty Ltd publications (hereafter referred to as the Daily
Telegraph publications)
1 The imputations pleaded (in paragraph 4 of the statement of claim) in relation
to the 21 July 2015 website publication are as follows:
i

That the plaintiff, by reason of permitting himself to be

photographed with a mullet hairstyle, has justifiably
exposed himself to ridicule by the defendant.

ii

That the plaintiff, by reason of permitting himself to be

photographed with a mullet hairstyle, has justifiably
exposed himself to ridicule by the public.

iii That the plaintiff, by reason of his mullet hairstyle, has

justifiably exposed himself to ridicule by the defendant.
iv That the plaintiff, by reason of his mullet hairstyle, has
justifiably exposed himself to ridicule by the public.
v

The plaintiff is a joke.

vi The plaintiff is a ridiculous person.

vii The plaintiff is hideously ugly.
viii The plaintiff is a ridiculous person because he wears a
silly haircut.
1 The second matter complained of (paragraph 7 of the statement of claim),
which is contained in the printed version of the Daily Telegraph, pleads the
same imputations save for (viii), where the words shameful haircut appear:
i

That the plaintiff, by reason of permitting himself to be

photographed with a mullet hairstyle, has justifiably
exposed himself to ridicule by the defendant.

ii

That the plaintiff, by reason of permitting himself to be

photographed with a mullet hairstyle, has justifiably
exposed himself to ridicule by the public.

iii That the plaintiff, by reason of his mullet hairstyle, has

justifiably exposed himself to ridicule by the defendant.
iv That the plaintiff, by reason of his mullet hairstyle, has
justifiably exposed himself to ridicule by the public.
v

The plaintiff is a joke.

vi The plaintiff is a ridiculous person.

vii The plaintiff is hideously ugly.
viii The plaintiff is a ridiculous person because he wears a

shameful haircut.
1 The defendants objections in correspondence and oral submissions were:
a Imputations (i), (ii), (v) and (vii) in each publication are not
reasonably capable of being conveyed. (The defendants
solicitors letter refers to imputation (v) and not to (vii), but this is
not how the argument progressed before me). Although not
stated in the correspondence, the submission as to the first
matter complained of implied that no imputations were
reasonably capable of being conveyed and, if accepted, would
mean that no imputations (including (viii)) were capable of being
conveyed.
b Imputations (i) (iv), (vi), (vii) and (viii) (the ridicule imputations)
do not differ in substance.
c

Additionally, imputation 4(v) does not differ in substance from the

ridicule imputations.

d Imputations 4(ii) and (iv) are ambiguous in that it is unclear what

is meant by the public: Fairfax Media Publications Pty Ltd v
Alex [2014] NSWCA 273. Furthermore, it is clear from the fact
that the defendant has picked up and republished the social
media posts that the defendant is in fact part of the public.
e Imputation 4(vi) is ambiguous and rhetorical.
The Australian Radio Network Pty Ltd publications
1 In relation to the first matter complained of, which is a website publication on
www.961.com.au, the imputations pleaded (at paragraph 3 of the statement of
claim) are as follows:
i

That the plaintiff, by reason of permitting himself to be

photographed with a mullet hairstyle, has justifiably
exposed himself to ridicule by the defendant.

ii

That the plaintiff, by reason of permitting himself to be

photographed with a mullet hairstyle, has justifiably
exposed himself to ridicule by the public.

iii That the plaintiff, by reason of his mullet hairstyle, has

justifiably exposed himself to ridicule by the defendant.
iv That the plaintiff, by reason of his mullet hairstyle, has
justifiably exposed himself to ridicule by the public.
v

The plaintiff is a joke.

vi That the plaintiff is hideously ugly.

vii The plaintiff is a ridiculous person.
viii The plaintiff is a ridiculous person because he wears a

ridiculous haircut.
1 In relation to the second matter complained of, which is a website publication
on www.kiis1065.com.au, the imputations pleaded (at paragraph 10 of the
statement of claim) are as follows:
i

That the plaintiff, by reason of permitting himself to be

photographed with a mullet hairstyle, has justifiably
exposed himself to ridicule by the defendant.

ii

That the plaintiff, by reason of permitting himself to be

photographed with a mullet hairstyle, has justifiably
exposed himself to ridicule by the public.

iii That the plaintiff, by reason of his mullet hairstyle, has

justifiably exposed himself to ridicule by the defendant.
iv That the plaintiff, by reason of his mullet hairstyle, has
justifiably exposed himself to ridicule by the public.
v

The plaintiff is a joke.

vi That the plaintiff is hideously ugly.

vii The plaintiff is a ridiculous person.
viii The plaintiff is a ridiculous person because he wears a
ridiculous haircut.
1 In relation to the third matter complained of, which is a Facebook publication on
KIIS 1065s Facebook page, the imputations pleaded (at paragraph 12 of the
statement of claim) are as follows:
i

That the plaintiff, by reason of permitting himself to be

photographed with a mullet hairstyle, has justifiably
exposed himself to ridicule by the defendant.

ii

That the plaintiff, by reason of permitting himself to be

photographed with a mullet hairstyle, has justifiably
exposed himself to ridicule by the public.

iii That the plaintiff, by reason of his mullet hairstyle, has

justifiably exposed himself to ridicule by the defendant.
iv That the plaintiff, by reason of his mullet hairstyle, has
justifiably exposed himself to ridicule by the public.
v

The plaintiff is a joke.

vi The plaintiff is a ridiculous person.

vii The plaintiff is a ridiculous person because he wears a
horrendous haircut.
1 The defendants objections, which apply equally to all three publications (those

imputations being identical save for a different word in imputation (vii) in the
third publication) are:
a Imputations (i), (ii) and (vi) are not reasonably capable of being
conveyed.
b Imputations (i) (iv) are ambiguous and do not differ in
substance from each other, and imputations (vii) and (viii) do not
differ in substance.
The relevant principles of law
1 As to the issue of capacity, the test to apply to the application brought by the
defendants under r 28.2 Uniform Civil Procedure Rules 2005 (NSW) (UCPR)
is set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [134]-[138].
The rulings on capacity are as a separate trial under this rule.
2 Mr Rasmussen submits that the test set out in Corby v Allen & Unwin Pty Ltd is
a low bar. Whether or not that is a correct statement of the law, the parties
agree that imputations should not be struck out other than in the plainest and
most obvious of cases: Younan v Nationwide News Pty Ltd [2013] NSWCA
335; New South Wales v Williams [2014] NSWCA 177; Abou-Lokmeh v
Harbour Radio Pty Ltd [2016] NSWCA 228; Cornwell v Channel Seven Sydney
Pty Ltd [2016] NSWCA 255 at [41]-[45].
3 As to the challenges to form, the requirement is that the imputation must
specify the act or condition allegedly attributed to the plaintiff by the matter
complained of with sufficient clarity to enable the defendants to know the case
they have to meet: Drummoyne Municipal Council v Australian Broadcasting
Corporation (1990) 21 NSWLR 135. In that regard, it is important to note the
New South Wales Court of Appeals observations that, independently of issues
of capacity, where the imputation does not differ in substance it should be
struck out: Fairfax Media Publications Pty Ltd v Alex [2016] NSWCA 273.
4 The principle objections to the form of the imputations are:
a Failure to differ in substance (UCPR r 14.30(3));
b Ambiguity: Fairfax Media Publications v Alex [2014] NSWCA 273
per McColl JA at [19]-[24], referring to Singleton v Ffrench (1986)
5 NSWLR 425.
1 There is sometimes an overlap between complaints of these kinds as to form.

For example, in Toben v Milne [2014] NSWCA 200, where the trial judges
rejection of an imputation on the basis that it did not differ in substance was
replaced, on appeal, by a finding of ambiguity.
2 Where challenges are made to the form and/or capacity of imputations, the
court invariably rules on each imputation separately. That is very difficult here,
because the imputations are so close in meaning that a finding that an
imputation is not reasonably capable of being conveyed and/or does not differ
in substance from several others, where one or more other imputations has
been struck out, may depend upon how other imputations are repleaded.
3 Another problem is the repetitious nature of the imputations, which are set out
in groups ((i) and (ii), (iii) and (iv), followed by two ridicule imputations and an
alternative but similar imputation that the plaintiff is a joke and is hideously
ugly). The high degree of similarity of the contents of the imputations is
exacerbated by the number of imputations pleaded. This was further added to,
during the argument, by generalised submissions as to whether a particular
imputation arose. As set out below, I have been careful to look at each
publication separately, as certain of the imputations arise in some publications
but not others.
Imputations of ridicule
1 The imputations pleaded in these proceedings follow patterns established by
what are sometimes called ridicule cases (the traditional description of
defamation being a publication which causes hatred, ridicule or contempt: J
Dean, Hatred, Ridicule or Contempt: A book of libel cases, Pan Books, 1953).
The imputations pleaded have borrowed the words used to convey imputation
in the following cases:
a Permitted the taking of photographs: Ettingshausen v
Australian Consolidated Press Ltd (1991) 23 NSWLR 443 (where
the plaintiff gave an interview and one of the photographs
appeared to show his penis).
b Justifiable exposure to ridicule and an imputation that the
plaintiff is a joke: Hanson-Young v Bauer Media Ltd (No 2)
[2013] NSWSC 2029 at [13]-[25]; Hanson-Young v Bauer Media
Ltd [2013] NSWSC 1306 (where the plaintiffs face was
photoshopped on a naked model and derisive comments made
about her political stance).

Hideously ugly: Berkoff v Burchill [1996] 4 All ER 1008 (where

the plaintiff was compared to Frankenstein).

1 There are no special rules about the form of pleading of ridicule imputations.
However, perhaps because they are often to be found in publications of an
informal and humorous nature, they can be more difficult to distil and draft than
imputations about a persons actions or personal qualities. This may account
for the pleaders recycling of the successful imputations in the cases listed in
paragraph 19 above.
2 However, what amounts to a good imputation in one case does not mean that it
is a good imputation in another. A good example can be seen from imputations
(i) and (ii), that the plaintiff permitted such a photograph to be taken. An
imputation concerning giving permission to be photographed was held to be
reasonably capable of arising in Ettingshausen v Australian Consolidated
Press Ltd (1991) 23 NSWLR 443 (at 449). However, the facts in that case were
that the photograph asserted to have been taken with his consent appeared to
show his penis. The sting of the libel lay in the nakedness shown in the
photograph being published to the world, and this was why permitting it was
reasonably capable of amounting to an imputation with a defamatory meaning.
3 Similarly, in Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586, a
photograph of a partially naked man tied with bondage equipment to a piano in
a public park during the Gay and Lesbian Mardi Gras was held to give rise to a
defamatory meaning, again in relation to his permitting the taking of a
photograph. There would have been many people who permitted their
photograph to be taken during this function; it was the plaintiffs nakedness and
ludicrous position in a public place that rendered his granting of permission to
be capable of giving rise to a defamatory meaning.
4 In both those cases, the sting of the libel lay in being photographed in
circumstances outside the normal, namely with disregard to the social taboos
of nakedness and/or lack of dignity. In fact, even if the person photographed
partially naked did not intentionally disrobe and/or permit the taking of the
photograph, being photographed partially nude may be sufficient to be
defamatory even where there was clearly no permission given. This was the
case in McDonald v The North Queensland Newspaper Co Ltd [1997] Qd R 62,

where a photograph of a footballer being tackled revealed his penis. There was
no suggestion that he had permitted the photograph to be taken, as the sting of
the libel was that his penis was showing.
5 However, the plaintiff in these photographs was not photographed naked or
looking in any way different to his normal appearance; the subject of comment
is the way he has styled his hair (namely a hairstyle known as a mullet).The
differences between decisions such as Ettingshausen v Australian
Consolidated Press Ltd and the matters complained of in these proceedings
are considerable, and demonstrate the dangers of copying the words of
imputations in one ridicule publication and asserting that they also arise in
other ridicule publications.
6 The same is the case with hideous ugliness and justifiable ridicule and an
imputation that the plaintiff is a joke. Mr Berkoff pleaded he was hideously
ugly because he was compared to Frankenstein. The fact that these
imputations have succeeded in other publications where comments have been
made about a persons appearance does not mean that they are necessarily
the correct imputations to plead in relation to the publications over which the
plaintiff has brought these proceedings.
7 While I propose to consider each publication separately, a preliminary issue
with which I propose to deal is that the photograph originally published of the
plaintiff is capable by itself (independently of the words in each of the matters
complained of) of giving rise to imputations (i) and (ii) of each of the
publications in which it appears.
8 There is also the question of whether, in its original or cropped form (with the
other dancers and/or the photographers studio logo omitted) and/or when
published with other photographs and/or as published in the photoshopped
pictures, it is capable of conveying these imputations independently of the
words.
The photograph of the plaintiff dancing and imputations (i) and (ii)
1 Mr Rasmussen submits that the ordinary reader would assume, from the pose
of the plaintiff and his apparent smile, that he is deliberately posing for the
camera and thus permitting himself to be photographed. He also relies on the

inclusion in the photograph of a logo jnoodles photography/Facebook. These

factors, he submits, convey that the plaintiff is posing for the photograph and
accordingly imputations (i) and (ii) in relation to each of the matters complained
of is reasonably capable of being conveyed on the photograph alone.
2 I do not accept this submission. First, there is nothing in the photograph to
demonstrate that the plaintiff is posing for a photograph. The plaintiff and his
partner are shown in profile on a crowded dance floor, dancing; the person they
are next to has her back to the camera and others on the dance floor are
partially cut off. The plaintiff is not smiling or looking at the camera as Mr
Rasmussen claims. The informal composition of the photograph does not in
any way suggest some formal posing by either the plaintiff or the young lady he
is dancing with.
3 Second, the fact that the photograph was taken by a professional photographer
could be a factor indicating that the plaintiff was permitting his photograph but,
in the absence of words to this effect in the matter complained of, this alone
would be insufficient. Ms Barnett submitted that readers would be aware that
photographers at social functions such as weddings or birthday parties may
take portrait photographs but would also take photographs of general scenes,
such as dancers on the dance floor (as is the case here) without approaching
all the persons in the photograph for permission to do so.
4 Third, the photographs are not all the same. The photograph in the Daily
Telegraph (Exhibit B) is cropped; it does not show the photographers logo or
the other dancers. I was not addressed as to these differences and whether
either of them meant that the plaintiff appeared to be posing for the
photograph. This was one of several submissions which were made in relation
to all the publications when in fact the photograph with the logo was not
produced in all or even most of them.
5 The photograph in the first matter complained of in The Edge (2016/211033) is
not cropped, but the logo of the photographer appears to have been deleted.
Again, no submissions were made about this difference.
6 Nor was any submission made to the photoshopped pictures of the plaintiff
used to create memes and Internet photographs. In the event submissions had

been made, I would make the same findings.

7 Even if the plaintiff did appear to be posing for the photograph of his face which
was repeated so often over the Internet, just what is it that the plaintiff
permitted the photographer to do by posing for his picture to be taken?
Permission to publish was not an issue in Ettingshausen v Australian
Consolidated Press Ltd because the matter complained of made clear that the
photographer was a person who had been allowed into the teams locker room
for the purpose of preparation of a book about football celebrities. Whether or
not such permission was granted by the plaintiff in these proceedings to do
more than take the photograph is not capable of being determined by the
photograph alone.
8 The plaintiff does appear to be posing for other photographs in the Daily
Telegraph, with the accreditation being from Facebook. The plaintiffs
ponytail/mullet hairstyle cannot be seen in these photographs as they are taken
of his face; all that can be seen is his shaved head. I was not addressed on
what to make of this.
9 I have been careful, in relation to each of the publications, not to have any
regard to the contents of photographs in other publications. However, in
relation to Mr Rasmussens submissions that any or all of these photographs in
some way support the imputation that the plaintiff permitted the photograph
(independently of the text of the matter complained of), this is not a submission
that I accept.
10 Having noted these findings in relation to the original and cropped photographs
(which I set out here, rather than repeat in relation to each of imputations (i)
and (ii) in the matters complained of where it appears), I now consider each of
the three claims brought by the plaintiff.
The proceedings against DailyMail.com: 2016/210991
1 There is only one claim made against the DailyMail.com. The imputations are
similar to those pleaded in the other two claims, but there is no pleaded
imputation that the plaintiff is hideously ugly.

Imputations 3(i) and 3(ii)

1 The opening headline (see Annexure A) states Photo of teenager at a party
with ridiculous haircut is huge hit on line and describes it in paragraph 3 as a
single photograph snapped at an 18th birthday party which went viral thanks
to one of the subjects unusual haircuts. The photographer told the
DailyMail.com that When I was walking around taking photos I didnt really
think anything of it (paragraph 9). He posted it onto social media and told the
birthday boys holding the party he was going out to dinner and, when he
looked again an hour later, saw that the photograph had received 300 likes
(paragraph 10).
2 The photographer is then quoted as saying that he was a full-time student but
that photography was more of a hobby than a career which was on the side
and just a bit of pocket money. His photography studio contact details are
included in the photograph.
3 Whether the photographer was paid to take photographs or not, there is
nothing in the language of the matter complained of to give rise to an
imputation that the plaintiff permitted himself to be photographed in
circumstances where he accordingly justifiably exposed himself to ridicule. As
noted above, I am not prepared to draw inferences from the photograph alone
that the plaintiff permitted himself to be photographed.
4 Imputations 3(i) and 3(ii) are premised upon the plaintiff having deliberately
exposed himself to ridicule by posing for the photograph. Neither the pictures in
the matter complained of nor the text are capable of giving rise to such a claim.
The words of the matter complained of are in fact to the contrary.
5 Ms Barnett also pointed out that the addition of the words by the defendant
and by the public to each of these imputations was similarly misconceived,
because there is nothing in the matter complained of capable of conveying that
the plaintiff permitted the photograph to be taken in public circumstances. I also
accept her submission that imputations 3(i) and 3(ii) do not differ in substance,
in that the matter complained of makes it clear that the publisher (which is
reporting the public comments) is effectively part of the public.
6 Independently of these defects, these imputations are not reasonably capable

of being conveyed and will be struck out.

The DailyMail.com imputations 3(iii) and 3(iv)
1 These imputations are not the subject of a capacity argument. The objection is
to their form. Ms Barnett referred to her instructing solicitors letter of 5 October
2016 and extended those submissions to argue that these imputations are
ambiguous because of:
a The use of the word justifiably (but cf Hanson-Young v Bauer
Media Ltd [2013] NSWSC 1306 at [48] and Hanson-Young v
Bauer Media Ltd (No 2) [2013] NSWSC 2029 at [31]);
b The phrase exposed himself to ridicule, which is asserted to be
a mere rhetorical flourish (again, see the authorities referred to in
(a) above);
c

The phrases by the public and by the defendant, which is a

distinction without a difference; these imputations do not differ
from one another.

d Imputations 3(vi) and 3(vii) similarly do not differ in substance.

1 As to imputations 3(iii) and 3(iv), I consider the phrases by the public and by
the defendant not to be capable of being conveyed in the absence of there
being something in the matter complained of to the effect that the plaintiff was
seeking to attract the attention of the defendant. I also consider that these
imputations do not differ in substance.
2 These imputations come much closer to the sting of the libel. The plaintiff is
entitled to plead imputations of the same kind as those pleaded by Senator
Hanson-Young, and to plead one as an act and the other as a condition. In
their present form, however, these imputations are struck out with leave to
replead.
3 Imputations 3(vi) and 3(vii) are the condition to go with the act the pleader
seeks to describe in 3(iii) and 3(iv). These imputations are almost identical. The
main difference between them is that imputation 3(vi) is unhelpfully vaguer than
3(vii). I propose to strike these out for the same reasons as 3(v). As already
indicated, I consider the phrases by the public and by the defendant not to
be capable of being conveyed in the absence of there being something in the
matter complained of to the effect that the plaintiff was seeking to attract the
attention of the defendant.

4 Imputation 3(vii) comes much closer to the sting of the libel. The plaintiff is
entitled to plead imputations of the same kind as those pleaded by Senator
Hanson-Young, and to plead one as an act and the other as a condition.
Imputation 3(vii) is therefore reasonably capable of being conveyed and will go
to the jury.
The DailyMail.com imputation 3(v)
1 The imputation the plaintiff is a joke is submitted not to differ in substance
from imputations 3(iii) and 3(iv), although I note, from Mr Svilans letter of 5
October 2016, that no objection was taken to this imputation. Ms Barnett has
dealt with this by relying upon the submissions made as to this imputation by
Ms Mullins, the solicitor in the proceedings the plaintiff brings against
Nationwide News Pty Ltd.
2 An imputation that the plaintiff is a joke was allowed to go to the jury, but by
reason of the joke cartoon of the plaintiff (whose head was superimposed on
a scantily clad body), and in circumstances where the plaintiff, a member of
parliament, had been reduced to a joke by the cartoon.
3 As I have set out below, the plaintiff is entitled to plead an imputation of
condition in relation to his hairstyle. An imputation that the plaintiff is a joke
would not differ in substance from either imputations 3(vi) or 3(vii). It is struck
out on that basis.
The DailyMail.com imputation 3(vi) and 3(vii)
1 Even on the low test applicable to UCPR r 28.2 arguments, the only subject
that is capable of giving rise to ridicule is the plaintiffs hairstyle. I accept the
defendants submission that these imputations therefore do not differ in
substance from each other.
2 As to 3(vi), an imputation that the plaintiff is a ridiculous person should be
struck out for lack of specificity for the reasons explained by Levine J in Scali v
John Fairfax Group Pty Ltd (Supreme Court of NSW, Levine J, 15 July 1993),
when his Honour struck out an imputation that the plaintiff was deserving of
being held up to public ridicule. As the court pointed out in Toben v Milne at
[31], the defendants should not be called upon to defend such an imprecise
and wide imputation.

3 Imputation 3(vii) does, however, identify the basis for the ridicule as being the
plaintiffs hairstyle. This imputation is reasonably capable of being conveyed
and will go to the jury.
4 If imputation 3(vii) remains, and is considered to be the condition to go with
the act of exposing himself to ridicule (which the pleader attempts to capture
in imputations 3(iii) and 3(iv)) this would be permissible.
The proceedings against the Daily Telegraph: 2016/210996
1 The plaintiff brings a separate statement of claim in relation to two publications,
with essentially the same imputations, save for the replacement of silly with
shameful to describe his haircut, in imputations 4(viii) and 7(viii).
The first Daily Telegraph publication
1 The first Daily Telegraph publication (Annexure B) is notable for its moderate
headline, absence of commentary and lack of colourful language. The plaintiffs
hairstyle is identified (accurately) as a mullet, which is described as
interesting (paragraph 8) and one of a few other bold and bright haircuts at
the party. Two photographs of the plaintiff from his Facebook page, full-face,
are captioned Ziggys mullet has garnered a great deal of attention on the
internet. The article consists almost entirely of interviews with the plaintiff and
his friends.
The first Daily Telegraph publication: imputations 4(i) and 4(ii)
1 The first matter complained of refers to a photo of [the plaintiff] dancing at an
18th birthday party in Hurstville (paragraph 5) becoming an internet sensation
after it was posted by the photographer. It then refers to the party host saying
that the plaintiffs hair had been cut like that for several years and the plaintiff
definitely was not going to change it. He then says:
He couldnt care less, there were a few other bold and bright haircuts at the
party. He doesnt mind people he doesnt know making fun but annoyed [sic] at
people he knows who are doing it.
I am surprised. We didnt expect any of this. I like the meme where the guy is
pinning the mullet. (paragraphs 15 16)

1 There then appears a photograph of the plaintiff from his Facebook page
wearing another hairstyle which includes long hair but an unshaven head.
Underneath appears the caption Copping it on the chin. This is followed by a

statement from the person who works as a photographer while studying at

university that he did not think the photo would blow up when he posted it
onto his own Facebook page (paragraph 17. The photographer went on to say
he did not think it was the right photo at the time, but this is in terms of
garnering social media attention and added:
When I first saw that (the mullet) it didnt seem real, its like a hair cut from
[sic] movie The Combination. Hes copped it on the chin, the birthday boys are
loving the attention. The response has been overwhelming. (paragraphs 27
28)

1 None of the language of the matter complained of is capable of supporting an

inference that the plaintiff permitted the taking of the photograph in
circumstances where he justifiably exposed himself to ridicule as a result. As
indicated above, I do not accept that the posing in the photograph or the fact
that the photograph was taken by a photographer retained to take photographs
of the birthday party amounted to permission.
2 Not even the memes which are reproduced are capable of conveying
imputations of ridicule, given the context in which they are published, as the
text of the matter complained of is clear to the same degree as that set out in
Charleston v News Group Newspapers Ltd [1995] 2 AC 65. This is not a case
of bane and antidote, requiring the weighing up of differing portions of the
matter complained of by the tribunal of fact, but a total absence of
characterisation of the plaintiff as anything other than a young man with an
interesting hairstyle which had captured the attention of the internet.
3 Any imputation of the plaintiff justifiably exposing himself to ridicule by
permitting himself to be photographed with a mullet hairstyle is therefore not
reasonably capable of being conveyed.
4 An additional problem is the addition of the words by the Daily Telegraph and
by the public in order to plead two imputations. This is also relevant to the
question of capacity, because there is nothing in the matter complained of
capable of conveying that the plaintiff permitted the photograph to be taken in
circumstances where he would come to the defendants notice.
5 There were also objections as to form, as there are to imputations 4(iii) and
4(iv) below, which are in identical terms but which do not refer to the plaintiff

having permitted being photographed.

6 Imputations 4(i) and 4(ii) are not reasonably capable of being conveyed.
The first Daily Telegraph publication: imputations 4(iii) and 4(iv)
1 Imputations 4(iii) and 4(iv), apparently acknowledging the difficulty of asserting
that the plaintiff was posing for the photograph, base the imputation upon the
plaintiff justifying the ridicule by the defendant (imputation 4(iii)) and the public
(imputation 4(iv)) merely by having a mullet hairstyle.
2 For the same reasons as set out in relation to imputations 3(iii) and 3(iv) of the
DailyMail.com publication, these imputations do not differ in substance from
each other and draw an impermissible distinction between the public and the
defendant.
3 Even if they did, for the same reasons as set out in relation to 4(i) and 4(ii)
above, they are not reasonably capable of being conveyed. The matter
complained of makes no value judgment of the plaintiffs haircut and no sense
of ridicule of the plaintiff is conveyed. While the hilarious memes are
reproduced, they are hilarious memes about the plaintiffs interesting haircut.
4 Imputations 4(iii) and 4(iv) are not reasonably capable of being conveyed.
The first Daily Telegraph publication: imputations 4(v), 4(vi) and 4(viii)
1 Imputations 4(v) and 4(vi) have the same defects of form as outlined in relation
to the other publications where these imputations are pleaded. However, both
these imputations and imputation 4(viii) suffer from the greater defect of relying
upon a concept of ridiculousness that is simply not present in the matte
complained of.
2 For the same reasons as set out above for imputations 4(i) to 4(iv), these
imputations are not reasonably capable of being conveyed.
The first Daily Telegraph publication: imputation 4(vii)
1 Still less than imputations of ridicule could there be any possible basis for an
imputation that the plaintiff is hideously ugly. Two photographs of the plaintiffs
full-on face are shown, under a caption that his mullet has garnered a lot of
attention on the internet, but no portion of the matter complained of is capable
of suggesting anything other than that his hairstyle has gained a lot of

attention, that he is taking this attention on the chin and that he does not
intend to change his hairstyle.
2 Not even the reproduction of the memes is capable of giving rise to such an
imputation, for the same reason as noted above in relation to the ridiculous
imputation.
3 This imputation is not reasonably capable of being conveyed.
Conclusions concerning the first Daily Telegraph publication
1 Only in the clearest cases would should the court strike out all the imputations
pleaded as not being capable of being conveyed: Bik v Mirror Newspapers Ltd
[1979] 2 NSWLR 679n. Even at trial, the test to be applied, according to Herron
CJ is the test in General Steel Industries Inc v Commissioner for Railways
(NSW) (1964) 112 CLR 125. The extreme caution to be used when exercising
the summary power is necessary because, as Herron CJ noted, a judge sitting
alone should avoid driving the plaintiff from the judgment seat. That is all the
more the case in a capacity hearing where summary judgment is sought,
and Bik v Mirror Newspapers Ltd must be read subject to this qualification.
2 The defendant does not ask me to strike out the whole of the matter
complained of as being incapable of conveying any defamatory imputation. The
orders I have made in relation to the first matter complained of amount to
striking out the imputations pleaded, and no more. If the plaintiff is able to
formulate imputations in their place, he is not precluded from doing so.
The second Daily Telegraph publication: imputations 7(i) and 7(ii)
1 The second matter complained of (Annexure C) does not feature the original
photograph taken at the party, but has extracted the portion of the photograph
showing the plaintiff and his dancing partner (the photographers logo is not
included). It would be an interesting issue of law if the viral nature of the
internet publication was such that any imputation arising from that photograph
could be pleaded as an extrinsic fact; perhaps fortunately, the concept of viral
publications and extrinsic facts is an issue which can await determination on
some other occasion.
2 This newspaper article commences with the heading From bad hair day to

mane [sic] attraction and shows a photograph cropped from the original
photograph, showing only the plaintiff and his partner, in a montage with two of
the photoshopped pictures where the plaintiffs fact has been used. The matter
complained of commences (paragraphs 6 7):
Meet Ziggy the Mullet Mossimani, the Sydney teenager whose bizarre
hairdo has caused a global internet storm.
Ziggys cranial styling went viral after a photographer posted a picture of him
dancing at an 18th birthday party at Hurstville.

1 The matter complained of goes on to state that the photograph had been
shared two million times and been the subject of an endless stream of
hilarious memes featuring the teenagers mullet (paragraph 8). It then reports
the plaintiff as initially enjoying the attention but then having fired back at his
critics, using expletive terms, and concludes with a statement by a friend that
the plaintiff was not going to change his hairstyle. Mr Nool, who is described as
a photographer while studying at university said he did not think the
photograph would blow up when he posted it on Facebook. This is followed
by a Hairy Hall of Shame which has no relevance to imputations 7(i) and 7(ii).
2 There is nothing in the text of the matter complained of to support an
imputation that the plaintiff permitted the photograph to be taken, or that he
sought the attention of the public (or the defendant) in any way.
3 Imputations 7(i) and 7(ii) are not reasonably capable of being conveyed.
The second Daily Telegraph publication: imputations 7(iii) and 7(iv)
1 Unlike the first matter complained of, this publication makes it clear that the
plaintiffs bizarre hairdo and crazy cranial styling is worthy of comparison to
the Hairy Hall of Shame.
2 As is the case with imputations 3(iii) and 3(iv) in the DailyMail.com publication,
these imputations do not differ in substance
The second Daily Telegraph publication: imputation 7(v)
1 For the same reasons as set out above, I consider the imputation the plaintiff
is a joke to be bad in form and not to differ in substance from imputations 7(vi)
and 7(viii).
2 This imputation is struck out.

The second Daily Telegraph publication: imputations 7(vi) and 7(viii)

1 For the same reasons as set out above, I consider the imputation the plaintiff
is a ridiculous person to be bad in form and not to differ in substance from
imputation 7(viii).
2 Taking into account the portions of the matter complained of which give rise to
an imputation of ridicule (as set out above), imputation 7(viii) is reasonably
capable of being conveyed but imputation 7(vi) will be struck out.
The second Daily Telegraph imputation 7(vii)
1 Mr Rasmussen did not submit that the hideously ugly imputations is based
upon the photoshopped images (even the photograph where a skunk has been
added to the plaintiffs head), but upon the text of the matter complained of and
in particular from the Hairy Hall of Shame, featuring famous actors and
singers whose hairstyles are criticised.
2 From its headline (mane attraction) to the Hairy Hall of Shame at the end of
the publication, the matter complained of makes it clear that the plaintiffs
mullet hairstyle is the subject of attack, but says nothing about the rest of his
physiognomy. The Hairy Hall of Shame features photographs of six men
whom it would be fair to describe as not only internationally famous but selfevidently handsome. No imputation of ugliness, let alone hideous ugliness,
could arise from comparison to these persons or from the text used to describe
them.
3 This imputation is not reasonably capable of being conveyed.
The proceedings against Australian Radio Network: 2016/211033
1 These are separate proceedings concerning three publications (see Annexures
D, E and F) on the KIIS Radio website, with what is agreed to be identical
imputations and content.
The first KIIS radio publication
1 While the text and photographs in these publications are largely the same as
the DailyMail.com and Daily Telegraph, the differences, particularly with regard
to the headlines, are of significance.

Imputations 3(i) and 3(ii)

1 The heading of this publication, Sydney man showcases ridiculous haircut,
internet goes crazy, and goes on to say:
Everyone, meet Ziggy, a 16-year-old man from Sydney who, for some reason,
decided to cut his hair in a way that we simply cannot explain

1 In paragraph 4, the matter complained of goes on to say:

After being uploaded last Tuesday, the photo has obtained more than 11,415
comments, almost 10,000 likes and more than a whopping 1.7 million views.
Ziggys mullet has awarded him the kind of fame he likely never would have
dreamed of.

1 The photograph of the plaintiff has been cropped, and neither the other
persons in the photograph nor the photographers logo appear. However, there
is an interview with the photographer, who says that he was walking round
taking photos but did not think it would be the right photo (i.e. a photo to
catch social media attention). Since the picture was shared, that situation had
changed.
2 The verb showcase is defined in Wiktionary (an appropriate dictionary to
consult, given the online nature of the material in the matters complained of) as
being to display, demonstrate, show or present. A showcase is a place for
displaying goods. The inference is that the plaintiff is putting himself and his
hairstyle on public display.
3 On a capacity basis, this publication is reasonably capable of giving rise to an
imputation that the plaintiff permitted both the taking of the photograph of his
ridiculous haircut and its posting on social media. The heading alone
(especially the verb showcases) is sufficient to convey an imputation to this
effect, but it is also aided by the references to after being uploaded, the kind
of fame he would never have dreamed of, the apparent relationship between
the photographer and the plaintiff that a loose-thinking reader might pick up
from the references to the right photo and the reference to the picture being
shared on Tuesday. On the r 28.2 UCPR test level, a reader would be entitled
to infer that the plaintiff played some part in this uploading, in the hope of fame,
as the next sentence goes on to say that the uploading gave him the kind of
fame he likely never would have dreamed of (paragraph 5).

4 This is sufficient for an imputation that the plaintiff permitted the photograph to
be taken (and, for that matter, uploaded), but the current imputations must be
struck out with leave to replead because of a series of form errors.
5 First, the plaintiff cannot plead two imputations in the place of one in
circumstances where the delineation between the public and the defendant
is without substance. The plaintiff is entitled to plead one imputation to the
effect that by reason of permitting himself to be photographed with the hairstyle
in question, he justifiably exposed himself to ridicule; any additional references
to the public or a defendant are a matter for the plaintiff.
6 Second, the plaintiff needs to identify the defamatory sting with more precision.
What is it about permitting himself to be photographed that made him justifiably
expose himself to ridicule?
7 I will accordingly strike out both imputations with leave to replead.
Imputations 3(iii) and 3(iv)
1 Depending upon the form of the imputation pleaded to replace imputations 3(i)
and 3(ii), these imputations would at best be fall-back imputations in the event
that the jury did not find an imputation of permission to be conveyed, as clearly
both cannot arise at the same time.
2 Additionally, the plaintiff cannot plead two imputations in place of one (and in
this regard I note my acceptance of the submissions of the defendants
objecting to the division between the defendant and the public).
3 I propose to strike both these imputations out as embarrassing in form and not
to grant leave to amend in their current form, because it is impossible to tell
whether they will differ in substance until the repleaded first imputation has
been determined. If the plaintiff does plead a fall-back to the new imputation to
replace imputations 3(i) and 3(ii), no fresh imputation is needed.
Imputation 3(vi)
1 As to imputation 3(vi), what passages of the matter complained and/or
photographs give rise to an imputation that the plaintiff is hideously ugly?
2 The heading of the matter complained of says that he has a ridiculous haircut
and this sentiment is repeated in paragraphs 4 and 5. However, the publication

goes on to say that the photograph has generated 11,415 comments, 10,000
likes and 1.7 million views, which suggests that the hairstyle has its fans and
opponents, but is not indicative of ugliness; to the contrary, 10,000 people
pressed the like button.
3 As already noted in relation to the photoshopped pictures in the Daily
Telegraph article, the closest any such picture gets to suggesting there is
anything unattractive (as opposed to ridiculous) in the plaintiffs appearance is
the photograph where a skunk has been added to the plaintiffs head. However,
these photoshopped images need to be viewed in context of the whole of the
matter complained of (Charleston v News Group Newspapers Ltd [1995] 2 AC
65). Viewed as a whole the matter complained of is commenting about his
hairstyle being ridiculous, and this is not the same as saying that the plaintiff is
ugly.
4 The additional material Mr Rasmussen relies on is the article at the side and
photograph (paragraphs 3 and 3A) which say Worst ever Yearbook haircuts
and show a photograph of a small, fat boy with a mullet haircut. However, this
photograph needs to be seen in context with the six photoshopped pictures of
the plaintiff showing him on Mount Rushmore, on a dollar bill, as pin the tail on
the donkey and as a horse, none of which suggest physical ugliness on the
part of the plaintiff, let alone hideous ugliness. The plaintiff has not been
compared to Frankenstein, or some other hideously ugly figure; his haircut has
been criticised as ridiculous.
5 This imputation is not reasonably capable of being conveyed and should be
struck out.
6 I have set out above my reasons for holding that imputations 3(v) and 3(vii)
should be struck out as embarrassing in form and not differing in substance
from other imputations, and I make the same rulings here.
Imputations 3(v), 3(vii) and 3(viii)
1 I repeat my observations concerning the problems with form of imputations 3(v)
and 3(vii).
2 As to 3(viii), as is the case with the other publications, the plaintiff is entitled to

plead an imputation of condition (namely being a ridiculous person for having

such a hairstyle) as well as an imputation amounting to an act.
3 This imputation is reasonably capable of being conveyed and will go to the jury.
The second and third publications
1 The second and third publications are essentially the same; the word
horrendous is used in place of ridiculous in imputation 12(vii) but it was not
suggested that this made any difference to any ruling I would make.
Accordingly I propose to make the same rulings for all three publications.
Costs
1 These are very short publications which make the point that the plaintiffs
striking mullet haircut has generated a great deal of interest on the Internet,
most of it humorous, and some of it in the form of clever observations, such as
the Pythagoras direction in one of the memes.
2 The statements of claim in all three matters are overpleaded, in that the
drafting seems to be designed to claim as many imputations as possible while
simultaneously avoiding a defence of honest opinion or justification.
3 As a result, the defendants have been successful in nearly all of their
objections. In those circumstances, the plaintiff should pay the defendants
costs of these applications.
Orders
1 I make orders as follows:
Proceedings 2016/210991
1 Pursuant to UCPR r 28.2, imputations 3(i) and 3(ii) are not reasonably
capable of being conveyed and are struck out.
2 Pursuant to UCPR r 14.30, imputations 3(iii), 3(iv) and 3(v) are struck
out with leave to replead.
3 Pursuant to UCPR r 14.30, imputation 3(vi) is struck out as bad in form
and as not differing in substance from imputation 3(vii).
4 Pursuant to UCPR r 28.2, imputation 3(vii) is reasonably capable of
being conveyed.
5 The plaintiff is to pay the defendants costs of this application.
6 The plaintiff is to file and serve an amended statement of claim in

fourteen days.
7 The proceedings are listed for further directions on 17 November 2016.
Proceedings 2016/210966
1 Pursuant to UCPR r 28.2, imputations 4(i), 4(ii), 4(iii), 4(iv), 4(v), 4(vi),
4(vii) and 4(viii) are not reasonably capable of being conveyed and are
struck out.
2 Pursuant to UCPR r 28.2, imputations 7(i), 7(ii) and 7(vii) are not
reasonably capable of being conveyed and are struck out.
3 Imputations 7(iii) and 7(iv) are struck out with leave to replead.
4 Imputations 7(v) and 7(vi) are struck out as not differing in substance
from imputation 7(viii).
5 Imputation 7(viii) is reasonably capable of being conveyed.
6 The plaintiff is to pay the defendants costs of this application.
7 The plaintiff is to file and serve an amended statement of claim in
fourteen days.
8 The proceedings are listed for further directions on 17 November 2016.
Proceedings 2016/211033
1 Pursuant to UCPR r 28.2, imputations 3(i) and 3(ii) are struck out with
leave to replead.
2 Imputations 3(iii), 3(iv), 3(v) and 3(vii) are struck out pursuant to UCPR r
14.30.
3 Imputation 3(vi) is not reasonably capable of being convey and is struck
out.
4 Pursuant to UCPR r 28.2, imputation 3(viii) is reasonably capable of
being conveyed and will go to the jury.
5 Pursuant to UCPR r 28.2, imputations 10(i) and 10(ii) are struck out with
leave to replead.
6 Imputations 10(iii), 10(iv), 10(v) and 10(vii) are struck out pursuant to
UCPR r 14.30.
7 Imputation 10(vi) is not reasonably capable of being convey and is
struck out.
8 Pursuant to UCPR r 28.2, imputation 10(viii) is reasonably capable of
being conveyed and will go to the jury.
9 Pursuant to UCPR r 28.2, imputations 12(i) and 12(ii) are struck out with
leave to replead.
10 Imputations 12(iii), 12(iv), 12(v) and 12(vii) are struck out pursuant to
UCPR r 14.30.
11 Imputation 12(vi) is not reasonably capable of being convey and is

struck out.
12 Pursuant to UCPR r 28.2, imputation 12(viii) is reasonably capable of
being conveyed and will go to the jury.
13 The plaintiff is to pay the defendants costs of this application.
14 The plaintiff is to file and serve an amended statement of claim in
fourteen days.
15 The proceedings are listed for further directions on 17 November 2016.
**********
Annexure A - DailyMail.com Matter Complained Of (15.0 MB, pdf)
Annexure B - Daily Telegraph online article (508 KB, pdf)
Annexure C - Daily Telegraph print article (518 KB, pdf)
Annexure D - Australian Radio Network First Matter Complained Of (747 KB,
pdf)
Annexure E - Australian Radio Network Second Matter Complained Of (2.06
MB, pdf)
Annexure F - Australian Radio Network Third Matter Complained Of (274 KB,
pdf)
Amendments
25 October 2016 - Annexures renamed

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