Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd
[2007] NSWDC 247
•26 November 2007
Reported Decision:
6 DCLR (NSW) 68
District Court
CITATION: Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd [2007] NSWDC 247 HEARING DATE(S): 23/11/07
JUDGMENT DATE:
26 November 2007JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Plaintiffs’ Summons for Extension of Time to bring proceedings in New South Wales and the Northern Territory arising from the publication “Lost In Translation” (the Australian Financial Review, 25 and 26 September 2004) dismissed; (2) No order as to costs; (3) Liberty to restore in relation to costs; (4) Exhibits remain with the file for 28 days. CATCHWORDS: Limitations - defamation - summons for leave filed on last day of time for extension of leave - proceedings commenced by Summons and no Statement of Claim filed - claims of prejudice and that proceedings were hopeless LEGISLATION CITED: Civil Procedure Act 2005 (NSW), ss 63 and 98
Defamation Act 1974 (NSW)
Defamation Act 2005 (NSW), Schedule 4
District Court Act 1973 (NSW), ss 4(3), 44(1) and 53
District Court Rules 1973 (NSW), Pt 1 r 4(1) and Pt 5
Limitation Act 1969 (NSW), ss 14B, 56A, 56D and 60G
Limitation Act (NT), ss 12 and 44
Limitation Act 1980 (UK), s 32A
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Workers Compensation Act 1987 (NSW), s 151DCASES CITED: Berowra Holdings v Gordon (2006) 223 CLR 364
Boland v Dillon [2007] NSWDC 77
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Crampton v Nugaiwela (1996) 41 NSWLR 176
Ford v Nagle [2004] NSWCA 37
Itek Graphix Pty Limited v Elliott (2002) 54 NSWLR 207
Nassif & Anor v Fahd & Ors [2007] NSWCA 308
Nawz v Minister for Immigration [2004] FCA 160
Sandrin v W M Rigg t/as W M Rigg Mechanical Repairs [2006] NSWCA 194
Trpenoski v BHP Flat Products [2003] NSWCA 176
Whisprun v Sams & Ors (2002) NSWCA 394PARTIES: First Plaintiff: Sayar Dehsabzi
Second Plaintiff: Malyar Dehsabzi
Defendant: John Fairfax Publications Pty LtdFILE NUMBER(S): 4210 of 2007 COUNSEL: Plaintiffs: C A Evatt / R Rasmussen
Defendant: R LancasterSOLICITORS: Plaintiffs: Bullivant Legal
Defendant: Freehills
Introduction
1. The plaintiffs by way of Summons seek orders for:
(2) leave to file the Statement of Claim annexed and marked “D” to the affidavit of Sayer Dehsabzi in respect of the causes of action set out and referred to in paragraphs 2 and 3.(1) time to be extended for the bringing of proceedings in respect of the publication by the defendant on 25 and 26 September 2004 in the “Australian Financial Review” of an article headed “Lost in Translation”;
2. The proceedings were brought by Summons. No Statement of Claim was ever filed, although only part of the claim falls outside the limitation period. I was told from the bar table that the plaintiffs initially sought to file a Statement of Claim and Notice of Motion for extension of time but that these documents were rejected by the District Court registry, so the plaintiff filed a Summons instead. If so, that is unfortunate, for the reasons explained by the Court of Appeal in Trpenoski v BHP Flat Products [2003] NSWCA 176.
3. The cause of action in these proceedings is a claim for damages for defamation. There are claims relating to the publication and republication of the matter complained of on the internet. These claims are for publications made within the last year. The sole publication which is out of time is the publication of the original article in the “Australian Financial Review” on 25 and 26 September 2004. In the course of argument, the plaintiff abandoned any claim for internet publications which were out of time and also any claim for publication of the “Australian Financial Review” in the Australian Capital Territory. I am thereby relieved from dealing with objections to the manner in which the proposed Statement of Claim deals with publication on the internet (which, I agree with the defendant’s counsel, is deficient) and with the limitation provisions pertaining to the Australian Capital Territory.
The background to this application
4. The plaintiffs are NAATI-accredited interpreters. They conduct an interpreting business in the Western Suburbs. They translate documents into and from Farsi, Pashto and Afghan. They are also registered migration agents.
5. The first plaintiff, Sayar Dehsabzi, was cross-examined on his affidavit and the second plaintiff, Malyar Dehsabzi, was also cross-examined. Both plaintiffs said they did not read the matter complained of when it was published and it did not come to their attention until November 2006. The first plaintiff was enrolled in a law course at the University of New England between 2004 and 2006 and the second plaintiff was very busy with work during this period. It was their evidence that nobody mentioned the publication until it was referred to (but not sent to them) by the Migration Agent Registration Authority. The first plaintiff then obtained a copy from an archival source for newspapers, Paper World Pty Ltd, and both plaintiffs consulted a solicitor. That solicitor told them, in late December 2006, that the limitation period of one year in New South Wales had expired, and they would need to bring proceedings out of time. In addition the first plaintiff, a law student, told the court he considered it would be necessary to prove actual damage, and at that time no actual damage had been incurred (the second plaintiff went along with his brother’s advice on this issue). In cross-examination the first plaintiff said frankly he was not concerned about what the article said until the events of the following year changed his mind.
6. The plaintiffs decided not to bring an action out of time and did nothing further about bringing proceedings. However, on 17 July 2007 the plaintiffs received correspondence from their family in Pakistan which contained two letters from the Taliban.
7. The text of the first letter is as follows:
28 May 2007 [12 Jamadi Ul Sani 1428]
“Islamic Movement of Taliban in Afghanistan
Directorate of the Central Zone Intelligence
Central Commission of Investigation and Observations
Subject
Seier, Resident of Dehsabz, Babaqushqar, is to be notified that the Taliban Movement of the Islamic Emirate of Afghanistan has obtained information that you have been cooperating with the infidel and slave regime of Afghanistan in its Ministry of Internal Affairs.
We are also informed that according to the publication of the Australian Financial Review that your family members Malyar and Salyar Behsabzi have been working with the Australian Government Intelligence Agency, ASIO.
The Australian government is currently fighting against [sic] on our soil fighting. They are in direct confrontation with us. The two mentioned individuals have been cooperating with the American CIA agency.
Your [sic] hereby, given the order that following the receipt of this letter you stop your anti Islamic and anti Taliban conduct.
The content of the Australian Financial Review is reflective of the fact that you have work [sic] with the [sic] that country’s [Australia] secrete [sic] service and the consequence of such conduct according to Islamic ordinances that [sic] Malyar and Salyar should be beheaded and they face the end of you [sic] conduct.
[Seal] Islamic Movement of the Afghanistan TalibanMuhlavi Ahmadjan Akhund
Director of the Intelligence
[Signature] [Signed]
Directorate of Central and International Information
Directorate of Central Zone Intelligence”
8. The text of the second letter is as follows:
“[Verses from the Holy Quran]
(Official Logo of the Taliban Islamic Movement)
Islamic Movement of Taliban in Afghanistan
Directorate of the Central Zone Intelligence
Central Commission of Investigation and Observations
31 May 2007 [15 Jamadi Ul Sani 1428]
Memorandum of the Taliban Military Council
We refer to our earlier communiqué about the same issue and hereby inform Seare of Babaqushqar, Dehsabz, that those cooperating with the present puppet regime in Afghanistan and fighting alongside the American, Australian and other foreign soldiers against the Taliban Islamic Movement are considered our enemies and they are liable to death.
Mulavi Ahmad Jan AkundzadaWe have also been informed from the Australian Financial Review that Malyar and Sayar Dehsabzi have been cooperating with the Australian spy agency Asio and they also provide assistance to CIA. You may comprehend that the American and Australian soldiers at present fighting on our soldier [sic] against the Taliban worriers [sic]. We in accordance to the Islamic ordinances condemn to death both Malyar and Sayar Dehsabzi for their cooperation with the Australian and American secrete [sic] agencies. This order is for the purpose that they meet the same consequences as other spies of America and Australia did. This will bring a listen [sic] to those helping the infidels in Afghanistan.
Central Zone
Military Council”
9. Following receipt of these letters it was the evidence of the plaintiffs that they realised that the newspaper article was still available to be read by people around the world. They consulted a solicitor who told them that they were out of time and would need the leave of the Court to commence proceedings.
10. I have no information as to what happened between July and 24 September 2007, when the Summons was filed, except that at some time an attempt was made to file the Statement of Claim and a Notice of Motion. The filing date, 24 September 2007, was the last day of the additional two-year period for which an extension can be granted under section 14B and 56A Limitation Act, 1969.
11. The application for extension of time is opposed by the defendant.
The defendant’s submissions
12. The defendant’s submissions, in light of the concessions referred to in paragraph 3 above, can be summarised as follows:
(a) the proceedings are out of time in New South Wales because the plaintiff should have filed a Statement of Claim on 24 September 2007, not a Summons and Notice of Motion, and the two year limitation extension period has now expired;
(b) the action is also out of time in the Northern Territory;
(d) The court should not grant leave in any event because of the alleged weakness of the case, in that some of the imputations are untenable, publication has not been properly pleaded concerning the internet claim (with the result that there is no provable claim of publication) and the plaintiffs’ evidence of lack of complaint is indicative of lack of damage to their reputations, meaning that damages would be minimal. In addition, the authenticity of the translations is challenged as they contain the stamp and certification of the plaintiffs’ company.(c) there is evidence of actual prejudice in the form of missing documents and witnesses as well as delay and a deliberate allowing of time to lapse by the plaintiffs, and for these reasons the plaintiffs should be refused leave in both New South Wales and the Northern Territory.
The law applicable to this application
13. Separately to the publications on the internet, for which the plaintiffs do not need leave, the plaintiffs seek leave to bring proceedings concerning the original article in the “Australian Financial Review” of 25 and 26 September 2004. Thus the applicable provisions are sections 14B and 56A Limitation Act, 1969 as it applied then. The amendments to section 56A as gazetted on 1 January 2006 do not apply.
14. The provisions of the Defamation Act 2005 Schedule 4 contain savings provisions indicating that where there is a cause of action accruing prior to 1 January 2006, actions accruing after that date may also be dealt with under the Defamation Act 1974. Although the internet claims that are not the subject of any application for leave fall outside the time frame envisaged under the savings provisions in the Defamation Act 2005, Mr Evatt indicated that if his clients were granted leave to commence proceedings out of time for the “Australian Financial Review” article, all the proceedings would be the subject of a section 7A trial. (As it happens, by reason of my rejection of the application to commence proceedings out of time, the proceedings will now be conducted in conformity with the provisions of the Defamation Act 2005).
15. The relevant limitation period expired on 25 September 2005 and the extension period on 25 September 2007, the day after the plaintiffs’ Summons was filed.
16. I now turn to a consideration of the issues raised by the defendant.
The proceedings are brought outside the limitation period in that no Statement of Claim was brought within time
17. The defendant, in written submissions handed up during the argument, submitted that the bringing of this application other than by commencement of proceedings by filing a Statement of Claim was fatal. This submission took the plaintiff by surprise.
18. As no authority was cited for this submission I asked counsel for the defendant (at T – 25, 39, 42, 47) whether his researches had yielded any authority on the issue, indicating I recalled a Court of Appeal decision on this point in which the plaintiff had relied on Whisprun v Sams & Ors (2002) NSWCA 394. At T – 25 counsel for the defendant said it would depend upon the particular statutory provisions and that “there is no general rule so far as I’m aware on the authorities”; at T – 39 lines 7 – 12 he did not answer me; at T – 42 he said “Not in relation to 56A(4), no”, and at T – 47 line 15 he told me there was no authority on this issue.
19. I indicated to the parties (T 25, 42) concerning this submission that as I was troubled by the argument I would need to reserve to review whether there was relevant authority (T 59 lines 50 – 55, T – 60 lines 10 – 13, T 62 lines 44 – 47). If there was a Court of Appeal decision on this issue I indicated I would of course follow it. It had been my recollection that the Whisprun argument had been considered by the Court of Appeal and accepted. The result of my researches was that counsel for the defendant and I had both been wrong, in that the Court of Appeal had indeed handed down a decision on this issue, but had rejected the Whisprun argument.
20. The case in which the Court of Appeal considered this issue is Trpenoski v BHP Flat Products [2003] NSWCA 176. The plaintiff in those proceedings, as in these proceedings, had failed to file a Statement of Claim at all. The Court of Appeal dismissed an appeal from Judge Phelan of the District Court refusing leave to an applicant for an extension of time under s 151D Workers Compensation Act 1987 to commence proceedings more than three years after the injury.
21. Meagher JA noted at [12] that the critical issue before the court was whether a Notice of Motion constituted the commencement of proceedings for the recovery of damages. “Proceedings” under the District Court Act 1973 meant the lodgement of a document commencing the proceedings (s 4(3)) and that there was a distinction between “action” and “proceedings” under the District Court Act which meant that an originating process commencing the proceedings and claiming an amount not exceeding $750,000 was required (sections 44(1), 53 and Pt 1 r 4(1) and Pt 5 District Court Rules). Meagher JA concluded that for actions for the recovery of damages to be validly “commenced” it was necessary for an ordinary Statement of Claim to be filed in compliance with Pt 5 r 6(1)(a). The decision in Whisprun was no more than an authority for the proposition that leave to commence proceedings may be granted pursuant to s 151D(2) irrespective of whether the proceedings in respect of which leave to commence is sought have actually been commenced before or after the question of leave is determined.
22. Notices of motion and other interlocutory applications made by summons, in or for the purposes of or in relation to an action, are not proceedings: Trpenoski at [25].
23. As in Trpenoski, the proceedings before me are an application for leave to commence proceedings for the recovery of damages; they do not constitute the commencement of those proceedings. An application for leave to commence assumes that such proceedings have not commenced.
24. It was submitted in Trpenoski that such a distinction was artificial in that it worked injustice to the claimant in that it deprived him, on a technicality, of any claim whatever for common law damages where there was no logical or principled reason to place a claimant at such a disadvantage. That argument was rejected by Meagher JA at [32].
25. That argument applies with even greater force in these proceedings. If this were an injustice, it was open to the drafters of the Civil Procedure Act to redraft the provisions relating to applications to commence out of time. There are no provisions that I can find in the Civil Procedure Act which cure this defect. In fact, Trpenoski was approved by the Court of Appeal in Sandrin v W M Rigg t/as W M Rigg Mechanical Repairs [2006] NSWCA 194 (although not referring to this specific point).
26. I note that under section 63(3) Civil Procedure Act I have a wide discretion to determine the consequences that will attach to a failure to comply with procedural requirements of the Act or Rules. In particular, a defective originating process is capable of constituting “commencement” of proceedings for the purpose of complying with a limitation period and the distinction between mere irregularity and a nullity is irrelevant, as the learned authors of Ritchie’s Uniform Civil Procedure point out at [s.63.10] (and see also Berowra Holdings v Gordon (2006) 223 CLR 364). The predecessor to section 63 was not referred to in Trpenoski. However, the difficulty I have with any attempt to rely upon section 63 or any of the other provisions of the Civil Procedure Act is that the Statement of Claim has not been filed at all, and the “irregularity” is that it was never filed rather than its contents are a nullity.
27. The two year extension period available to the plaintiff expired on the day the Summons was filed. Thus any cause of action for the publication on 25 and 26 September 2004 is time barred.
28. Mr Lancaster’s failure to find any authority on this point when the matter was argued before me meant that I was left to research it. This puts the plaintiffs at a disadvantage because their counsel is not in a position to answer and to point out any defects of reasoning on my part.
29. This is, unfortunately, a not uncommon situation in the District Court. The solution of relisting the matter for further argument (which the Court of Appeal noted in Ford v Nagle [2004] NSWCA 37 was the step taken) is fraught with difficulty because it is near the end of term and any further delay in proceedings where a Statement of Claim is yet to be filed is undesirable. Accordingly I have taken the step of handing down my judgment (however informally worded it may be as a result) on the next working day following the motion so that the plaintiffs can take such steps as are necessary to seek leave to appeal if I have erred, as well as being put on notice of the dangers of continuing to fail to file their Statement of Claim.
30. I would not have taken the step of handing down the judgment without asking for further submissions about Trpenoski if I had not determined to reject the application in any event because I am not inclined to accept their explanation for delay until the last day of the limitation period (Itek Graphix Pty Limited v Elliott (2002) 54 NSWLR 207), and it is to this issue that I now turn.
The explanation for delay
31. The plaintiffs were interviewed in the newspaper article and their explanations are referred to on several issues. They must also have been aware of the matters in the Wilcox J judgment referred to in the newspaper article. However, they were not cross-examined about being on notice of the likelihood of publication of the newspaper article, nor were they cross-examined about their claim not to have known about the article for over two years. Accordingly I must accept this part of their explanation about the publication.
32. The plaintiffs did have the newspaper article brought to their attention in November 2006. Again, they were not cross-examined about how this came to their notice, or whether the authority referring to it had expressed concerns. Something must have been said, because the plaintiffs were sufficiently concerned to obtain legal advice about defamation. In late December 2006 they were advised that the limitation period had expired and that they would have to seek leave to commence proceedings out of time.
33. The explanation offered for not seeking an extension in December 2006 is that the plaintiffs believed that they had to prove “actual damage” (affidavit of Sayar Dehsabzi, paragraph 6) and that “at the time no actual damage had been incurred”. Mr Dehsabzi seems to have thought he had to prove “damage to my reputation” (T – 13). He said in his evidence he had been studying law at the University of New England and that it was as a result of these studies that he thought actual damage had to be proved.
34. Mr Dehsabzi agreed in cross-examination that he and his brother had sought legal advice from a solicitor at the end of November 2006 (T – 19) and this was how he discovered that an application to bring proceedings out of time had to be brought. He said he and his brother were content not to bring proceedings prior to July 2007 because “what’s written in this article is correct” (T 15 line 16). This changed when he received the letters from his family enclosing the two letters from the Taliban. It was the discovery that the Taliban had pronounced a death sentence against him (for the reasons set out in the Taliban correspondence, set out above) that he decided to bring proceedings.
35. Mr Malyar Dehsabzi said in evidence that he did not see the newspaper article before November 2006 because he was very busy. He said he went with his brother to the solicitor and that since his brother was studying law he went along with his advice.
36. Apart from references from the bar table to an unsuccessful attempt to file a Notice of Motion (and an accompanying Statement of Claim) there is no explanation as to why it took from July 17 to 24 September for the plaintiffs to bring this application. Again, the plaintiffs were not cross-examined on this.
37. As section 56A(4) is similar to the language of section 60G(2), I can obtain guidance from decisions such as Itek. At [48] – [55] Ipp A-JA explained the very broad nature of the discretion and the importance of the test being flexible with regard to the facts in the case. The question is whether a sufficient explanation has been given for the failure to commence proceedings in time and if so whether having regard to all of the circumstances of the case it is fair and just to grant the application. Relevant factors to consider include those listed in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 – 556 per McHugh J.
38. In particular, a deliberate decision not to commence proceedings will weigh against the exercise of discretion. This principle, already of considerable importance in personal injury litigation, must carry particular weight in defamation proceedings. The purpose of the reduction of the limitation period, which became law when gazetted on 17 February 2003 as one of a series of reforms of the law of defamation, was to discourage the bringing of claims years after the event which by reason of the evanescent nature of newspaper, radio and television, were very difficult to defend and in circumstances where delay in commencing proceedings could have a substantial impact on any damages awarded.
39. Most of the applications brought before the court for extension of time in defamation proceedings that have been successful have involved very short delays of weeks (see examples referred to in Boland v Dillon [2007] NSWDC 77). The explanation for delay has generally been oversight by a lawyer as to the change in the law. Gatley on Libel & Slander (10th edition, at 18.26), notes that applications in the United Kingdom for extensions of time brought under section 32A Limitation Act 1980 (which was inserted in 1996) only one application has been granted, and in that case the period of delay was very short. While decisions in the United Kingdom should be viewed with caution because the requirements of the legislation are different, the fact remains that defamation has always been a cause of action where a plaintiff who does not bring and prosecute proceedings expeditiously risks reduction of damages or the striking out of the action, and a plaintiff who seeks an extension of time needs to take these factors into account when explaining the reasons for delay to the court.
40. In the present case, the plaintiffs made a deliberate forensic decision, after consultation with a solicitor, not to bring proceedings to extend time, a decision they stood by for over six months. This delay is of importance, because a significant feature of defamation litigation is that delay in commencing and prosecuting the action may result in a substantial reduction of the damages awarded.
41. The plaintiffs then further delayed until the very last day of the limitation period in filing their summons, and their explanations for this second period of delay (from receipt of the letter from Afghanistan in July 2007 onwards) are unsatisfactory. There is no reason why the plaintiffs could not have commenced proceedings in July or August 2007. This second period of inaction, coupled with the previous inaction from November 2006 to July 2007, is almost as long as the period given by statute to commence proceedings. The newspaper article was readily obtainable; the identity of the defendant was never in doubt; the plaintiffs already knew a solicitor to consult, and one of the plaintiffs was a law student. Such delay must be fatal to their claim even if a Statement of Claim had been filed on 24 September 2007 rather than the Summons which I have found to be insufficient by reason of the Court of Appeal’s decision in Trpenoski.
42. If, as a result of the newspaper article being available on the internet in Afghanistan this year, the plaintiffs’ reputations have suffered damage, that is a publication concerning which they can bring proceedings without needing leave to bring proceedings over the publication on 25 September 2004. The real difficulty is probably that the law of the jurisdiction in which the Taliban readers downloaded the publication is the law of Afghanistan, and in all likelihood there is no law awarding monetary damages for publication in that jurisdiction. However, that would not have been a bar to the plaintiffs commencing proceedings about internet publications in Australia and obtaining the judgment which would have corrected any alleged falsities in the newspaper article. (It is my understanding that the plaintiffs thought that a judgment identifying the falsity of the allegations about their activities may, if contained in a judgment on the District Court website, have had a persuasive effect upon those responsible for the Taliban fatwā).
43. These remarks are addressed to publication in New South Wales and the Northern Territory only. (By reason of the time constraints in the production of this judgment, I shall simply note that sections 12 and 44 Limitation Act (NT) provide a regime similar to that available in New South Wales). No claim is made for publication in the Australian Capital Territory and the defendant concedes that the relevant legislation in other States and Territories of Australia provides a limitation period of six years.
44. Accordingly I am not satisfied that the plaintiffs have provided a sufficient explanation for failure to commence proceedings and I decline to grant leave to commence proceedings in relation to publications in New South Wales and the Northern Territory.
45. Part of the reason for my making this finding is that the defendant has provided evidence of actual prejudice.
Prejudice
46. The defendant submits there is evidence of actual prejudice from loss of documents and missing witnesses.
47. The affidavit of Martin Smith deposes (at paragraph 4), on information and belief, to the journalist having left the employ of the defendant and that as a result of being given different desk locations prior to her departure, the journalist’s notes had been mislaid prior to her departure. In addition, at least three of the persons she interviewed had since returned to Pakistan or Afghanistan, and their whereabouts are unknown.
48. I shall deal first with the claim in relation to missing witnesses. Courts in applications for extensions of time generally show considerable sympathy to a claim that a witness cannot be located by reason of the effluxion of time.
49. The publication was an extensively researched article. While some of the sources are unnamed, others are named. Many of the allegations are expressed as coming from a number of sources. The persons who are sources and who are referred to in the publication are:
(a) a “well-placed source within Canberra’s Department of Immigration (paragraph 5), a spokesperson for the department (paragraph 34) and “DIMIA” (paragraph 14);
(b) “Lawyers”, presumably lawyers for the refugees (paragraph 14);
(c) “some” refugees (paragraph 14), “a number of Afghan refugees” (paragraph 53);
(d) “a number” of people within the Australian Afghan community (paragraph 15);
(e) named persons such as Ahmed Rashid (the author of the Rise of Militant Islam in Central Asia ), Dr Marten Dormaar, William Maley, Marion Le, Laurie Ferguson (paragraphs 16, 29, 31, 50, 51);
(f) the unnamed source for the fist fight in New Delhi (paragraph 17), who is presumably someone who was in New Delhi or who heard about it from a person in New Delhi;
(g) the plaintiffs’ co-workers, including an International Organisation for Migration officer (paragraphs 21, 22);
(h) a former Pakistani diplomat (paragraph 24);
(j) the unnamed sources for the stories of the death of Mohammad Mussa Nazari in Afghanistan (paragraphs 32 – 33) and for Ahad Bilal in Australia (paragraphs 40 – 47) and “a number of sources” discussing the federal investigation team from Dimia visiting refugees in Australia (paragraphs 37 – 39).(i) Federal Court proceedings before Wilcox J (this is probably Nawz v Minister for Immigration [2004] FCA 160); and,
50. Mr Smith’s affidavit asserts on information and belief that “at least 3 of the people who provided information” to the journalist had returned to Pakistan or Afghanistan and their whereabouts were unknown.
51. Counsel for the defendant has not indicated what information these three missing potential witnesses provided. For example, it is not asserted that the person who gave information about the fist fight in New Delhi, or the death of Mr Nazari, is no longer available. Thus the impact of the missing evidence in relation to a defence of justification is difficult to assess.
52. The material provided by Australian sources, including DIMIA, the Department of Foreign Affairs and named experts, constitutes the bulk of the publication. Many of the matters referred to as coming from unnamed sources identify more than one person as the source. For example, the allegations in paragraph 14 come from “some refugees, lawyers and people within DIMIA”. There are references on several occasion to “a number” of sources (eg paragraphs 15, 37, 53) and there is reference to Marion Le having about 20 clients with complaints about the plaintiffs who have lodged documents and statements about this as part of their asylum applications and to Laurie Ferguson as receiving complaints as well. It would appear possible that the journalist spoke to tens, if not hundreds, of people to obtain not only information but corroboration from named experts.
53. These witnesses would only need to be called if a defence of truth is pleaded. Their evidence would be unlikely to be necessary if defences of qualified privilege or comment were pleaded.
54. In the absence of a specific claim that a vital part of the story cannot be proved because the source cannot be located, it is hard to see what the prejudice would be from the fact that these persons have returned to Afghanistan or Pakistan, especially as there is no evidence about any search or inquiry to locate them. Accordingly I have given very little weight to the claim of missing witnesses.
55. The absence of the journalist’s notes would not be likely to make any significant difference to a defence of justification as the majority of the sources are named or are otherwise likely to be located. The journalist’s notes would be of greater significance in relation to a defence of qualified privilege. Mr Lancaster only referred in his submission to a defence of justification. However, it seems unlikely that the defendant would not plead such a defence. If a defence of qualified privilege were pleaded, the absence of the journalist’s notes would be of some significance, particularly in relation to her interviews with the plaintiffs and the circumstances in which she put a number of the allegations to them and included their responses.
56. Accordingly I consider the loss of the journalist’s notes amounts to evidence of actual prejudice. The delay in commencement of proceedings would make it difficult for the journalist to reconstruct her research.
57. To a degree, these findings are artificial, in that the plaintiff can commence proceedings over those publications that do not fall outside the limitation period. However, that should not deter me from making a finding as to the actual prejudice caused by the journalist’s loss of notes over the years since publication of the article.
Weakness of the case
58. The defendant’s major submission, which took up most of the hearing time, was that the plaintiffs’ claim for damages for defamation was hopeless. This was put on the following bases:
(a) the plaintiffs had not suffered any damage to their reputation for two years after publication so their damages would be nominal;
(b) the Statement of Claim merely asserted publication, which was impermissible as there could be no publication on the internet unless the publication was downloaded, and the Statement of Claim should be struck out without leave to replead;
(c) the Statement of Claim did not state where the newspaper article had been published and should be struck out without leave to replead;
(e) the accuracy of the translations was challenged.(d) some of the imputations were unlikely to be conveyed; and
59. As Mr Evatt pointed out, the publication for which leave was sought was the article in the “Australian Financial Review” and the publication of this newspaper throughout the States and Territories of Australia was specifically pleaded in the draft Statement of Claim attached to Mr Dehsabzi’s affidavit. The internet pleading, whether deficient or not, was irrelevant to the application before me.
60. Deficiencies in pleading rarely lead to the striking out of proceedings without leave to replead, for the reasons explained by the Court of Appeal in Ford v Nagle, supra. This includes failure to give proper particulars of identification and imputations which are the subject of challenge.
61. On the subject of whether any damages would be awarded, publications of imputations even to a limited audience may, for a professional man, result in substantial damages, even when there has been a delay in bringing proceedings, for the reasons explained by the Court of Appeal in Crampton v Nugaiwela (1996) 41 NSWLR 176. In Crampton only 22 persons received the matter complained of and other publications following the initial publication (some of which were made by the plaintiff) were similarly limited, but the Court of Appeal declined to set aside a jury verdict of $600,000 as excessive.
62. In practical terms, if the publication of the newspaper article on the internet led to the plaintiffs receiving a fatwā from the Taliban announcing they would be beheaded, and the plaintiffs are able to establish a connection between these two events, then it would be hard to imagine damage to reputation of a greater severity.
63. If the accuracy of the translations is challenged, the proper course is to have the articles translated by another NAATI-accredited person. There is a Code of Ethics for interpreters. I can have confidence that the independent NAATI-accredited interpreter retained by the plaintiffs’ company has translated the Taliban’s correspondence in accordance with that Code of Ethics. Counsel for the defendant did not complain about the accuracy of the translation. I note there are a number of apparent translation errors (for example, the reference to “Taliban worriers” instead of “Taliban warriors”) but I do not propose, in the absence of evidence of mistranslation, to reject the translations.
64. The submissions about the hopelessness of the plaintiffs’ claim are without substance and I reject them.
Costs
65. The Court has a wide discretionary power with respect to costs: Civil Procedure Act 2005 s. 98. The ordinary course is that costs follow the event: UCPR r 42.1. In the case of limitation applications, there are special rules: Limitation Act s.56D. The most important consideration is whether costs were reasonably incurred so as to achieve the outcome which the court’s decision has established was just: Nassif & Anor v Fahd & Ors [2007] NSWCA 308.
66. The plaintiffs were taken by surprise by the defendant’s submissions concerning the failure to file the Statement of Claim. It is referred to only briefly in paragraph 19 of the Submissions as an alternative argument. When I asked counsel for the defendant to direct me to any Court of Appeal decisions on this issue, and specifically referred to Whisprun, he was unable to refer me to any. I was left to find Trpenoski for myself and as a result this argument was not able to be challenged in court. It may have been that if the plaintiffs were told about Trpenoski, either in correspondence or in court on Friday, that they would not have argued this application.
67. In Nassif the Court of Appeal set aside a judgment where the legal issues upon which the appellant had succeeded, including relevant High Court authority, had not been put to the District Court judge hearing the proceedings. The Court of Appeal noted at [4] that while it cannot be seen clearly what course would have been followed if this had happened, it was “overwhelmingly likely” that the trial would either not have taken place or that it would have been far shorter. The Court of Appeal noted that there was “a serious failure by the appellants to consider fully, discern and notify the court” of the grounds on which the respondents’ claims were resisted. In those circumstances, it was appropriate that although the appellants had won, there should be no order as to costs.
68. In a busy Friday motions list, it is sometimes difficult for a judge hearing a number of applications to research all legal issues. No indication was given to me prior to the hearing of the issues in this case, and the written submissions handed to me during the hearing do not refer to any authority for this proposition.
69. When appellate judgments refer to the failure of judges at first instance to consider legal issues, this has sometimes happened because relevant authority has not been cited to the trial judge. In Nassif, the Court of Appeal noted that relevant High Court authority was never put to the trial judge. My concern is that it leads to unfairness to the opposing party, for the reasons explained by the Court of Appeal in Nassif.
70. Accordingly, although the defendant has been successful in this application, I propose to make no order as to costs with the intent that each party be left to bear his or its own costs, adopting the helpful explanations and reasons given by the Court of Appeal for so doing in Nassif. I shall, however, grant liberty to apply in the event that the defendant did in fact raise the matter earlier with the plaintiff, or refer the plaintiff in correspondence to appropriate authority on this issue.
Orders
71. It is not necessary for me to make orders granting leave to the plaintiff to file in jurisdictions outside New South Wales and the Northern Territory as I have rejected the application to commence proceedings outside the limitation periods in those jurisdictions. Accordingly I will dismiss the Summons and leave it to the plaintiffs to file such Statement of Claim, including any claims arising out of the publication of the newspaper article in jurisdictions where there is a six year limitation period, and any claim for publication on the internet (which I trust will be properly pleaded and particularised).
(1) Plaintiffs’ Summons for Extension of Time to bring proceedings in New South Wales and the Northern Territory arising from the publication “Lost In Translation” (the Australian Financial Review, 25 and 26 September 2004) dismissed.
(2) No order as to costs.
(3) Liberty to restore in relation to costs.
(4) Exhibits remain with the file for 28 days.
Schedule
Lost in translation
The dangerous undercurrents of refugee politics
Complaints about the activities of two Afghan interpreters have reached a level where investigation seems likely.
Story Julie Macken
[Picture with caption – “Asylum seekers on Nauru found that interpreters’ opinions carried great weight in the refugee application process.”]
1. As Australians went to the polls in 2001 the refugee issue was making headlines. Today, two weeks from another federal election, refugees are off the political agenda. Images of detention centre riots, sewn lips, screaming children and suicide attempts are just a bad memory.
2. After 9500 refugee applications and five years, this chapter in Australia's history seems to be finally drawing to a close.
3. The fate of the refugees who were sent back, however, is another story but it is one which links the past to the present. A lengthy investigation by the Weekend AFR has illuminated some of the troubled byways of the refugee saga, byways that stretch from Sydney to the hide-out of Osama bin Laden.
4. But first a brief history.
5. As the number of people arriving by boat went from 157 in 1998 to 923 in 1999 and finally peaked at 9589 in June 2002, the federal government panicked. As a well-placed source within Canberra's Department of Immigration told the AFR, "the Minister [Philip Ruddock] was desperate to stop the boats coming and everyone who worked in the department was desperate for the Minister's approval."
6. Four years later, with most of the camps shut down and boat arrivals non-existent, the noise from and about the camps has died down. More than 9000 people have been given temporary protection visas and only 81 children remain in detention. Yet it now appears that some of the measures adopted by the Howard government during that period, far from securing Australia's borders, may have enfeebled them. Other measures had unintended and deadly consequences for a number of asylum seekers.
7. Of the 9500 people who came to Australia by boat, 3892 of them were from Afghanistan. They were largely Hazara Afghans fleeing persecution by the predominantly Pashtun Taliban force.
8. So what relevance does this have for asylum seekers? Well, back in 1999 the Howard government had to find a way to turn the boats around without overtly breaching Australia's international treaty obligations, and return those who had already made it ashore. Aside from the legislative changes made from 1999 through to 2001, the government developed a strategy. This was to find interpreters who would work with the Department of Immigration (Dimia) and who could help process those who had made it to Australia.
9. Finding qualified interpreters who were fluent in Dari, Farsi, Hazargi - the three languages used by Afghans - and English was nearly impossible. In the end, Dimia drew many of its interpreters from the previous wave of Afghan refugees - those who had fled to Australia during the 1980s when Russia and the United States turned Afghanistan into yet another Cold War battleground. These were almost exclusively Pashtuns.
10. The problem for the Hazara Afghans, who made up the bulk of the asylum seeker population in detention, was the deep ethnic animosity and power difference that exists between the Pashtun and Hazara tribes.
11. It is not clear whether the Department of Immigration was unaware of these tensions or just unconcerned by them. Whatever the reason, two interpreters and translators who were used extensively in Woomera, Port Hedland, Curtin and Nauru were Pashtun Afghans.
12. Malyar and Sayar Dehsabzi are Afghan-Australian brothers. They work as migration agents through their company, Ethnic Interpreters & Translators, located in Parramatta, Sydney. Both men have worked extensively as interpreters and translators for Dimia and are registered migration agents.
13. Malyar Dehsabzi confirmed to the AFR he had worked with both the Department of Immigration and Asio [sic] in the Woomera, Port Hedland, Curtin and Nauru detention camps from 1999 onward. "But I was an interpreter only - that's all," he says.
14. However, according to some refugees, lawyers and people within Dimia, Malyar and Sayar were a lot more than that.
15. A number of people within the Australian Afghan community remember the mid 1980s when they claim the pair worked for the Afghan warlord and, later, bin Laden supporter and head of the Hesb-e-Islami party, Ghulbuddin Hekmatyar, in New Delhi.
16. According to Ahmed Rashid, author of The Rise of Militant Islam in Central Asia, Hesb-e-Islami "is a terrorist group in the same category as Taliban and al-Qaeda." He further asserts that a connection between the Hesb-e-Islami and the Pakistani secret service, ISI, remains firm because ISI, "consider Hesb-e-Islami as the main Pashtun party apart from Taliban."
17. The AFR has been told of an alleged fist fight that occurred while Malyar was working in New Delhi. According to one source: "Malyar had put out a pamphlet supporting Hekmatyar and saying terrible things about the Hazaras. A group of men began yelling at him and his group. It ended in a big fight."
18. Hekmatyar is now second to Osama bin Laden on the US most-wanted list, although at the time of the alleged fight, Hekmatyar was being spoken of as a possible prime minister for Afghanistan. Indeed, he visited Canberra in 1989 and met then foreign minister Gareth Evans.
19. For his part, Malyar concedes he was working in New Delhi at that time, but he denies ever working for Hekmatyar or ISI. However, Sayar has confirmed that, after the Russian invasion of Afghanistan, he became involved with Hekmatyar and wrote a memorandum to the Indian government demanding Russia withdraw from his country. "I no longer support Hekmatyar," he says, "but at that time everyone had to decide which side they were on."
20. All of this would have remained a footnote in recent history had Malyar not been put in such a powerful position by Dimia.
21. By the time Malyar moved to Nauru to work as an interpreter with both UNHCR and Dimia, his co-workers were complaining of his approach to the Hazara Afghans he was translating for.
22. "Interpreters were assigned 15 or so cases at a time," says an International Organisation for Migration officer who worked on Nauru at the time. "Malyar would regularly declare 10 out of his 15 to be Pakistani. Other interpreters found either none or one at most."
23. The consequences of a declaration of ethnicity could prove fatal to an asylum seeker's chances of finding protection in Australia, because these remarks would become part of the application process.
24. It is important to note that, according to a former Pakistani diplomat, the Pakistan government had told the federal government in the last half of 2003 that Australia would not be allowed any access to Pakistan's identity database. That meant Dimia had no way of confirming or denying whether an asylum seeker was from Afghanistan or Pakistan.
25. Thus the department became almost exclusively dependent on anonymous dob-ins and translators and interpreters to determine whether they thought someone was from Pakistan or Afghanistan.
26. But Malyar's work on Nauru went much further than translating and interpreting.
27. By the second half of 2002, with the Taliban in retreat and disarray, the federal government launched a program to repatriate the almost 4000 Afghans living on Nauru and in Australia on temporary protection visas.
28. Despite offering the financial incentive of $2000 per single person, many Hazaras were still afraid of a resurgent Taliban presence and persecution by the Pashtun population. Then, out of the blue, Malyar began sending emails from Afghanistan to various people on Nauru telling them how peaceful and safe the country was.
[“Within 10 months of his return home, Nazari was shot dead by Taliban forces while riding his motorbike”]
29. Dutch psychiatrist Dr Maarten Dormaar, who was working for IOM on Nauru at the time, told the AFR: "I was arguing with some colleagues from IOM, saying it was not safe for the Hazaras to be sent back, when one of my colleagues said I was wrong and produced these emails from Malyar. In the emails Malyar said Afghanistan was wonderful and that he had travelled all over the country and it was safe to travel everywhere."
30. At the same time, the Minister for Immigration, Philip Ruddock, put out a press release saying: "The Afghan transitional government has emphasised the stability and safety that has been brought to the region, paving the way for Afghan nationals to return."
31. According to Afghan specialist William Maley, the idea that Afghanistan was a safe country for Hazaras in 2002 was fanciful. "I was in Afghanistan a few months after that and it is a fantasy to say it was safe," he says. "In September 2002, a massive bomb killed 30 people in Kabul."
32. Mohammad Mussa Nazari was one of the first Hazaras to put the safety of the country to the test. He joined a group of 113 people and returned to Afghanistan in the first major repatriation flight from Nauru.
33. Within 10 months of his return home, Nazari was shot dead by Taliban forces while riding his motorbike through the Zardak Pass.
34. The AFR has raised a number of these issues with the Department of Immigration. A spokesperson for the department responded by telling the AFR: "The Privacy Act prevents Dimia from disclosing information about individuals. However, I can say that the current policy of the Translating and Interpreting Service is that interpreters who are also registered migration agents are not allocated any jobs to assist with immigration operations."
35. Malyar Dehsabzi is now working as a migration agent in Sydney. His brother, Sayar Dehsabzi, works with Malyar as a translator, interpreter and migration agent.
36. Like his brother, Sayar is now an Australian citizen and well known within the Afghan community in Australia. He is also known to the federal investigators within Dimia.
37. According to a number of sources, the federal investigation team from Dimia approached two people living in detention centres in late 2001 and again in 2002.
38. The people approached by the investigative team were shown transcripts of telephone conversations between themselves and their migration agent, Sayar. They were also shown documentation and other material demonstrating the investigative team had had Sayar under observation for some time.
39. The AFR was told both men declined to work with the team. Regardless of the reassurances offered by the team, they were unwilling to co-operate.
40. It was during this period that a young Pakistani boy, Ahad Bilal, contacted Sayar to act as his migration agent. According to Bilal's friend, Frances Milne, convener of the Coalition for the Protection of Asylum Seekers, Bilal had fled Pakistan after his grandfather and uncle had been killed by a drug-smuggling network operating in north Pakistan.
41. He arrived in Sydney on a temporary visa and was put in Villawood detention centre in January 2002, where he lodged his application for refugee status with the department.
42. Bilal told various people that he paid Sayar more than $2000 to take his case to the Federal Court - Bilal was under the impression that Sayar was a lawyer. Sayar confirmed there was some confusion over his title. "In my language," he said, "there is no clear distinction between the words adviser and lawyer. But I never call myself a lawyer."
43. Sayar said Bilal did not pay him $2000. He concedes that Bilal had paid him, "about $600 to translate some tapes for him - but that is all."
44. However it soon became clear Sayar would not be taking his case to the Federal Court. Bilal sent a fax to the Department of Immigration complaining about Sayar's conduct and told Sayar he wanted his money back.
45. According to one person who witnessed their meeting, Sayar visited Bilal in Villawood a week later to discuss Bilal's demand for the money. Unfortunately, a fortnight later, Bilal was told he would be deported back to Pakistan.
46. The day before Bilal was sent back he met his friends from the Balmain Uniting Church. As they were leaving Bilal told them not to be sad. "If God allows, I shall survive," he said.
47. Four weeks later, Bilal was murdered. He was found by his sister-in-law vomiting and dying from a massive shot of heroin. Doctors later confirmed he had died from poisoning and a heroin overdose.
48. Recently, a Federal Court judge, Justice Murray Wilcox, accepted as a matter of fact that Sayar Dehsabzi had lodged documents designed to mislead Dimia and that he had lied to a client about a number of issues.
49. "The proceedings took place in my absence," Sayar Dehsabzi argues. "The judge was reasonable and honest, but he was wrong."
50. Long-time migration agent and advocate Marion Le currently has about 20 clients who have concerns about documents and statements lodged on their behalf by both brothers. While she acknowledges that it is almost standard procedure for failed asylum seekers to blame their interpreters, she believes the allegations concerning the Dehsabzis have now reached a point of critical mass that demands further investigation.
51. Labor's spokesman for population, Laurie Ferguson, has also had a number of Afghans on TPVs approach him with serious complaints about the brothers.
52. He told the AFR: "In the context of their allegations it opens up to question the validity of decisions made in detention centres as a result of the brothers' interpreting services."
53. A number of Afghan refugees have told the AFR they believe the Dehsabzis' attitudes towards Hazara refugees have been affected by the long-held tension that exists between Pashtuns and Hazaras.
54. Sayar Dehsabzi rejects this. "There have been gross violations of human rights against Hazaras and Pashtuns but I want to work to end that discrimination," he says. "I want to defend the human rights of all Afghans."
55. Because Pakistan has closed its books to Australia, Australia depends almost exclusively on dob-ins to ascertain the truth about an asylum seeker's identity. The question many are now asking is: who is the department getting the dob-ins from and what is their agenda?
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