Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd (No 2)

[2008] NSWDC 77

Reported Decision: 6 DCLR (NSW) 388

District Court

CITATION:	Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd (No 2) [2008] NSWDC 77
HEARING DATE(S):	15 May 2008
JUDGMENT DATE:	15 May 2008
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Grant leave to the plaintiff to withdraw imputations (c), (d) and (e) for each of the first and second plaintiffs, with liberty to replead. (2) Dismiss the plaintiff’s application for all issues to be determined by the jury instead of a jury empanelled pursuant to s 7A Defamation Act 1974 (NSW). (3) All imputations, including any repleaded imputation(s) to replace imputations (c), (d) and (e) for each of the first and second plaintiffs (subject to any challenge to the repleaded imputation(s) by the defendant), are to go to the s 7A jury. (4) The costs of this application are the defendant’s costs in the cause. (5) Matter stood over to the Defamation List on Friday 23 May 2008 at 9:00am to allocate a s 7A jury trial hearing date.
CATCHWORDS:	DEFAMATION - jury trial - whether s 7A jury provisions procedural or substantive - whether s 7A is the appropriate procedure for interstate publications where there is no publication in New South Wales
LEGISLATION CITED:	Defamation Act 1974 (NSW), ss 7A, 9(3) and 16 Defamation Act 2005 (NSW), Sch 4 cl 2(3)(a) Defamation Amendment Act 2002 (NSW) District Court Act 1973 (NSW), s 76B Judiciary Act 1903 (Cth), s 79 Supreme Court Act 1933 (ACT) Supreme Court Procedure Act 1900 (NSW), s 5(6)
CASES CITED:	Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 Capital and Counties Bank Ltd v George Henty & Sons [1881-5] All ER Rep 86 Coleman v The Shell Co of Australia Ltd (1943) 45 SR 27 Crampton v Nugawela (1996) 41 NSWLR 176 David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24 Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd [2007] NSWDC 247 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Don v Lippmann (1837) 5 Cl & Fin 1 English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440 Farquhar v Bottom [1980] 2 NSWLR 380 Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 Habib v Nationwide News Pty Ltd (2006) 65 NSWLR 264 Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933 Hore-Lacy v David Syme & Co Ltd [1998] VSC 96 Hore-Lacy v David Syme & Co Ltd [1999] VSC 36 John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Lewis v Daily Telegraph Ltd [1964] AC 234 Lewis v Daily Telegraph Ltd [1963] 1 QB 340 May v TCN Channel Nine Pty Ltd (Supreme Court of NSW, case number 20199 of 2006) Minister for Army v Parbury Henty and Co (1945) 70 CLR 459 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 Moselmane v Jones (District Court of NSW, Gibson DCJ, 14 August 2002, unreported) Morgan v Odhams Press Ltd [1971] 2 All ER 1156 O'Connor v Nationwide News Pty Ltd (1995) 128 FLR 61 Obeid v Australian Broadcasting Corporation (District Court of NSW, Gibson DCJ, 28 March 2003) Orsborn v John Fairfax Publications Pty Ltd (Supreme Court of NSW, case number 20228 of 2004) Parker v John Fairfax & Sons Ltd (Supreme Court of NSW, Hope, Samuels and Mahoney JJA, 30 May 1980, unreported) Perkins v Harris [1995] NSWCA 364 Plato Films Ltd v Speidel [1961] AC 1090 Poyser v Minors (1881) 7 QBD 329 Qureshi v John Fairfax Publications Pty Ltd (Supreme Court of NSW, case number 20155 of 2006) Robinson v Laws & Anor [2001] QCA 122 Sleeman v Nationwide News Pty Ltd [2002] NSWSC 1100 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Talbot v Nationwide News Pty Limited [2006] NSWDC 59 Waterhouse v Australian Broadcasting Corporation (1990) A Def R 50-070 (Supreme Court of NSW, Hunt J, 13 June 1990) Wm Cook Pty Ltd v Read [1940] VLR 214 Zollner Ltd v Municipal Council of Sydney (1917) 17 SR (NSW) 164
PARTIES:	First Plaintiff: Sayar Dehsabzi Second Plaintiff: Malyar Dehsabzi Defendant: John Fairfax Publications Pty Ltd
FILE NUMBER(S):	150 of 2008
COUNSEL:	Plaintiffs: R Rasmussen Defendant: R Lancaster
SOLICITORS:	Plaintiffs: Bullivant Legal Defendant: Freehills

Introduction

1. The plaintiffs have commenced proceedings in New South Wales for a series of publications by the defendant on or about 25 September 2004 in Queensland, South Australia, Tasmania, Victoria and Western Australia (paragraph 1 and 2 of the Amended Statement of Claim). There is no cause of action in New South Wales as I refused to grant leave to the plaintiffs to commence proceedings in New South Wales out of time: Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd [2007] NSWDC 247.

2. All of these causes of action predate the enactment of the uniform defamation laws which in New South Wales are contained in the Defamation Act 2005 (NSW) (hereafter “the 2005 Act”). Accordingly the legislation which is appropriate to the procedure for the claims is the Defamation Act 1974 (NSW) (hereafter “the 1974 Act”), according to the defendants.

3. However, the plaintiffs submit that as there is no cause of action in New South Wales, the court should apply either the jury trial provisions of the 2005 Act (for jury determination of all issues except quantum) or the substantive law of jurisdictions in which the tort occurred (John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503). It is submitted that s 7A is substantive, not procedural. If the substantive interstate law is applied jury would determine all issues of fact, including damages, because the procedural law which should be applied is the procedure for all other States and Territories of Australia. It is asserted that in each State except South Australia the relevant tribunal is a jury of four (paragraph 6 of the plaintiffs’ written submissions). To overcome the procedural difference in South Australia, the plaintiffs contend that, for “convenience”, the trial of all the claimed causes should be heard by a jury of four on all issues of fact.

4. The defendant opposes this application and seeks a s 7A jury trial. In addition, the defendant raises objections to the form and capacity of the imputations.

Application for jury trial on issues additional to s 7A issues

5. The basis upon which s 7A is claimed to be procedural rather than substantive in nature is that s 7A Defamation Act 1974 restricted the decision on issues of defamatory meaning to the jury and all other issues are therefore determined by the judge. In practical terms, this means that any contextual imputations pleaded by the defendant pursuant to s 16 Defamation Act 1974 would be determined by the trial judge as part of any contextual truth defence.

6. The plaintiffs submit that they are deprived of potential causes of action by this statutory amendment. The plaintiffs claim they are deprived of the opportunity to add these imputations into the Statement of Claim and “plead back” contextual imputation pleaded in the defence, which is of necessity filed after the s 7A jury trial has been concluded.

7. The nature of a defence of partial justification is as follows. Where a plaintiff pleads a number of imputations, a defendant can plead a defence of partial justification in relation to the existing imputation, but can in addition plead imputations not pleaded by the plaintiff. The manner in which this defence is to be pleaded is explained by the Court of Appeal in Perkins v Harris [1995] NSWCA 364.

8. The introduction of s 16 was to prevent injustices of the kind which occurred in Plato Films Ltd v Speidel [1961] AC 1090, where a plaintiff relied upon a portion of the matter complained of which imputed he was responsible for the death of the king of Yugoslavia while not relying upon a portion of the film which dealt with the responsibility of the plaintiff for the deaths of thousands of inmates in detention camps during World War II. Section 16 was enacted to prevent a plaintiff from suing only upon those imputations which were false, and leaving out the imputations to which a defence of truth could be pleaded, by permitting the defendant to plead back imputations which had not been pleaded by the plaintiff as part of a defence of contextual truth.

9. However, defendants cannot plead a defence of contextual truth on the basis that the defendant “almost got it right”. For a defence under s 16 to succeed, the combined effect of all of the contextual imputations must “swamp” the plaintiff’s imputations: Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 396. Such serious allegations giving rise to such an imputation would be apparent to the pleader, and any decision not to plead such an imputation is most likely to be a forensic decision rather than an oversight. Even if there were such an oversight, if the defendant did plead a contextual imputation which the plaintiff wished to add, an application could be made by the plaintiff under s 9(3) for leave to empanel a second jury to determine whether this imputation was conveyed. Although no application for a second jury trial has ever been made in defamation proceedings in New South Wales, the leave proceedings in s 9(3) would, in theory, permit this. In Sleeman v Nationwide News Pty Ltd [2002] NSWSC 1100 the plaintiff sought leave to plead two additional causes of action, namely the contextual imputations pleaded by the defendant after the conclusion of the s 7A trial. The defendant consent to this. Levine J noted there “may or may not be” a question of the applicability of s 9(3) of the 1974 Act, but declined to grant leave, notwithstanding the defendant’s consent, because of “the structure of the case hitherto”. While leave was refused in that instance, it would in my view be open to the plaintiff in these proceedings to seek leave to add contextual imputations as causes of action.

10. It is asserted there has never been any restriction of this kind in Queensland, South Australia, Tasmania or Victoria and that in each jurisdiction the plaintiff can amend imputations and plead back the defendant’s imputations “without restrictions” (paragraph 4 of the plaintiffs’ written submissions). In fact there was no contextual truth defence in Queensland (see Robinson v Laws & Anor [2001] QCA 122) prior to the uniform legislation and the restrictions in pleading a “Polly Peck” imputation in Victoria are eloquently described by the Victorian Court of Appeal in a series of decisions in Hore-Lacy v David Syme & Co Ltd [1998] VSC 96; Hore-Lacy v David Syme & Co Ltd [1999] VSC 36 and David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24. Accordingly I do not accept the submission that the plaintiffs have been deprived of a cause of action by s 7A, nor do I accept that this renders s 7A substantive in nature.

Should the 2005 Act procedure be applied?

11. I will deal first with the submission that the Defamation Act 2005 should be applied to the hearing of these proceedings. Clause 2(3)(a) of Schedule 4 of the 2005 Act confirms that the existing law of defamation applies to any cause of action that accrued before the commencement of the 2005 Act. In Habib v Nationwide News Pty Ltd (2006) 65 NSWLR 264 at 267 the Court of Appeal at [12] stressed that the clear intention of the legislature “was to ensure that the provisions, both substantive and procedural, of the Defamation Act 1974 would apply to publications which occurred prior to 1 January 2006”. There is no reason why a different result should follow merely because the present action does not include a claim for damages for publication in New South Wales, since it is brought in the New South Wales court to which the procedural provisions of the Defamation Act 1974 must apply. Accordingly, the 2005 Act cannot be applied to proceedings concerning publications made before its enactment.

Should interstate jury procedural rules be applied?

12. Can the jury trial procedure available in other States and Territories be applied? As a matter of commonsense, all matters of procedure in tort cases are conducted in accordance with the rules which are directed to governing or regulating the mode or conduct of court proceedings and are regulated by the law of the forum, whereas matter of substance are governed by the law of the place of the wrong (John Pfeiffer Pty Ltd v Rogerson at 543-544). The question is whether or not the s 7A jury trial is procedural.

13. As Mr Lancaster points out at paragraph 9 of his helpful written submissions, there is no authority to the effect that s 7A is substantive rather than procedural. It has always been the law that the right to trial by jury is procedural rather than substantive: Zollner Ltd v Municipal Council of Sydney (1917) 17 SR (NSW) 164. It was for this reason that the Defamation Act 2005 needed to preserve the applicability of the provisions, both substantive and procedural, of the Defamation Act 1974, as otherwise the jury provisions would have been procedural, as the Court of Appeal noted in Habib v Nationwide News Pty Ltd at [12]. The legislature had to confront a similar problem when amending the 1974 Act to insert, pursuant to the Defamation Amendment Act 2002 (NSW), a reference to s 76B District Court Act 1973 (NSW) into s 7A(5) Defamation Act 1974. This was because up until 17 February 2003, the s 7A procedure was applicable to jury trials in the Supreme Court, whereas jury trials in the District Court require the filing of a jury requisition and the payment of fees. As a result, a substantial number of defamation trials were conducted in the District Court without a jury. When this omission was noted by the legislature, following a discussion of this omission in Moselmane v Jones (District Court of NSW, Gibson DCJ, 14 August 2002, unreported), the Act was amended. From that time onwards, defamation cases were conducted in the District Court in accordance with s 7A: see Obeid v Australian Broadcasting Corporation (District Court of NSW, Gibson DCJ, 28 March 2003).

14. As indicated in paragraph 10 above, I do not accept the submission that the enactment of s 7A deprives a plaintiff of the chance to plead back an imputation, or that by doing so s 7A is rendered substantive rather than procedural.

15. In addition, there are sound rules of practice to the contrary. It is consistent with the practice of both the Supreme Court and the District Court in cases brought under the Defamation Act 1974 which involve multi-state publication that the parties follow the procedure provided for in s 7A. To apply the procedure of other courts would lead to absurd or inconvenient consequences.

16. Prior to the introduction of s 7A, a number of cases considered the issue of the transfer of proceedings and the question of procedural rules of the forum. The first of these was Waterhouse v Australian Broadcasting Corporation (1990) A Def R 50-070 (Supreme Court of NSW, Hunt J, 13 June 1990). A defamation case had been transferred from the Australian Capital Territory to the Supreme Court of New South Wales. The question for determination was the appropriate procedural conduct of the case in New South Wales. A similar argument was put on behalf of the plaintiff that the right to a trial by a judge without a jury was a substantive one which had been transferred to the court with the actions themselves, and that it was wrong to characterise such a right as merely a rule of procedure. Hunt J did not accept this submission and went on to say:

“The mode of trial with or without a jury is pre-eminently a question of procedure that is, it concerns the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines that right: Poyser v Minors (1881) 7 QBD 329 at: 333. And that is so whether the word "procedure" be given a wide or a narrow sense: cf Coleman v The Shell Co of Australia Ltd (1943) 45 SR 27 at 32. In the context of the conflict of law rules, the word "procedure" embraces the whole of the law of evidence and the law relating to legal remedies and the enforcement of legal rights: Wm Cook Pty Ltd v Read [1940] VLR 214 at 219.

The statement by Lush LJ in Poyser v Minors to which I have already referred was approved by Latham CJ in Minister for Army v Parbury Henty and Co (1945) 70 CLR 459 at 489. In that case, the right of appeal from a judge of this Court to the Full Court given by s 5(6) of the Supreme Court Procedure Act 1900 was held to be a law "relating to procedure" within the meaning of s 79 of the Judiciary Act 1903 (the context being "the laws of each State, including the laws relating to procedure, evidence and the competency of witnesses"). The right of appeal within a court, Latham CJ said, was not a law creating a substantive right; it related only to the method of establishing or enforcing that right. It was therefore a procedural matter.

The right to a hearing with or without a jury must similarly be a law relating to procedure; and see Don v Lippmann (1837) 5 Cl and F1 at 14-15 [7 ER 303 at 308]. The plaintiffs have argued that, as that right is dealt with in a statute both in the Australian Capital Territory and in New South Wales, rather than in the procedural rules made pursuant to those statutes, the characterization should nevertheless be different. That circumstance, however, makes no difference to the proper characterization of the right in question. The right of appeal considered in the Parbury Henty Case was similarly dealt with in a statute. I am satisfied that, in accordance with par (c) of s 11(1), the mode of trial (whether the claims should be heard with or without a jury) is to be such as is considered appropriate in the circumstances.”

17. In O'Connor v Nationwide News Pty Ltd (1995) 128 FLR 61 an application was made by the defendant to transfer proceedings from the Australian Capital Territory to the Supreme Court of New South Wales or alternative for a direction that the trial be with a jury under the Supreme Court Act 1933 (ACT). The reason was that the plaintiff was herself a judicial officer. Although not deciding the issue for unrelated reasons, Higgins J referred to s 7A as a “suggested procedural difference” in the context of a discussion in which the court was alive to the distinction between matters of substance and procedure.

18. It has been the regular practice of the Supreme Court to apply the provisions of s 7A of the 1974 Act to proceedings involving multi-state publications without distinguishing between allegations of publication and damage in New South Wales and other states and territories. The defendant draws my attention to Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933; Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139; Orsborn v John Fairfax Publications Pty Ltd (Supreme Court of NSW, case number 20228 of 2004); Qureshi v John Fairfax Publications Pty Ltd (Supreme Court of NSW, case number 20155 of 2006); and May v TCN Channel Nine Pty Ltd (Supreme Court of NSW, case number 20199 of 2006). Similarly in the District Court I conducted Talbot v Nationwide News Pty Limited [2006] NSWDC 59 on this basis. I have conducted a number of other s 7A jury trials on this basis.

19. The defendant also points to statements made by the High Court in John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 where the members of the High Court repeatedly referred to s 7A of the Defamation Act 1974 as a procedure: see [13], [34], [37], [45], [71], [99] and [158].

20. Case management occupies a particularly important role in defamation proceedings, for the reasons explained by the Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37. Even if s 7A were substantive in nature, the case management rules for defamation proceedings in New South Wales should apply to all defamation actions brought in this court other than in compelling circumstances. The fact that the plaintiffs have no cause of action in New South Wales because their claim was held to be out of time is hardly a compelling circumstance.

21. Accordingly I accept the defendant’s submissions that the conduct of these proceedings should be in accordance with the provisions of s 7A of the Defamation Act 1974.

22. This brings me to a consideration of the attack upon the form and capacity of the imputations.

Form and capacity of imputations

23. The imputations as currently pleaded in the Amended Statement of Claim are as follows:

“ The First Plaintiff :

(a) The first plaintiff lied when he said that he did no more than interpret when he worked for the Department of Immigration and ASIO at the Woomera, Port Hedland, Curtin and Nauru detention camps from 1999 onwards.

(b) The first plaintiff was spying on his own people for ASIO when working at the Woomera, Port Hedland, Curtin and Nauru detention camps from 1999 onwards.

(c) The first plaintiff worked for an Afghan Warlord, Ghulbuddin Hekmatyar, in the mid 1980s.

(d) The first plaintiff worked for a supporter of Osama Bin Laden.

(e) The first plaintiff worked for a terrorist group called the Hesb-e-Islami Party.

(f) The first plaintiff was spying on his own people for the Taliban and Al Qaeda when working at the Woomera, Port Hedland, Curtin and Nauru detention camps from 1999 onwards.

(g) The first plaintiff was spying on his own people for the Pakistani Secret Service when working at the Woomera, Port Hedland, Curtin and Nauru detention camps from 1999 onwards.

(h) The first plaintiff lodged documents designed to mislead DIMIA.

(i) The first plaintiff misled Ahad Bilal, a client, about taking his claim for refugee status to the Federal Court.

(j) The first plaintiff misled Ahad Bilal, a client, about being his lawyer.

(k) The first plaintiff is responsible for the death of Ahad Bilal because he did not take his claim for refugee status to the Federal Court.

(l) The first plaintiff is a supporter of terrorists.

(m) The first plaintiff did not protect the interests of Hazara refugees when he interpreted for them and lodged documents and statements on their behalf because he was a Pashtun.

The Second Plaintiff :

(a) The second plaintiff lied when he said that he did no more than interpret when he worked for the Department of Immigration and ASIO at the Woomera, Port Hedland, Curtin and Nauru detention camps from 1999 onwards.

(b) The second plaintiff was spying on his own people for ASIO when working at the Woomera, Port Hedland, Curtin and Nauru detention camps from 1999 onwards.

(c) The second plaintiff worked for an Afghan Warlord, Ghulbuddin Hekmatyar, in the mid 1980s.

(d) The second plaintiff worked for a supporter of Osama Bin Laden.

(e) The second plaintiff worked for a terrorist group called the Hesb-e-Islami Party.

(f) The second plaintiff was spying on his own people for the Taliban and Al Qaeda when working at the Woomera, Port Hedland, Curtin and Nauru detention camps from 1999 onwards.

(g) The second plaintiff was spying on his own people for the Pakistani Secret Service when working at the Woomera, Port Hedland, Curtin and Nauru detention camps from 1999 onwards.

(h) The second plaintiff deliberately mislead members of IOM when he sent e-mails claiming that Afghanistan was safe to travel everywhere in 2002.

(i) The second plaintiff should be held responsible for the deaths of Afghan refugees who were repatriated from the second half of 2002 because he used his position within DIMIA to convince others that it was safe for them to return when it was not.

(j) The second plaintiff is a supporter of terrorists.

(k) The second plaintiff did not protect the interests of Hazara refugees when he interpreted for them and lodged documents and statements on their behalf because he was a Pashtun.”

24. In the course of argument, the plaintiff sought leave to withdraw imputations (c), (d) and (e) for each of the plaintiffs and to replead them, so it is not necessary for me to provide reasons for any findings in relation to the assertion that these imputations do not differ in substance.

25. The matter complained of, the text of which is set out in the schedule at the end of this judgment, contains 61 paragraphs in which a great deal of information about the plaintiffs and their activities is provided. Central to any question of determination of the capacity of the imputations is the description of the plaintiffs in paragraphs 15 and 16. They are referred to as “two interpreters and translators who were used extensively in Woomera, Port Hedland, Curtin and Nauru” who are Pashtun Afghans. We are told in paragraph 16 that they are “Afghan-Australian brothers” and that “[t]hey work as migration agents through their company, Ethnic Interpreters & Translators, located in Parramatta, Sydney”. We are told that “[b]oth men have worked extensively as interpreters and translators for Dimia and are registered migration agents”. In paragraph 17 the second plaintiff is quoted as admitting to having worked for the Department of Immigration and ASIO in these detention camps from 1999 onwards, although he claimed to have been an interpreter only. The matter complained of goes on to state, and this is central to many of the imputations, that:

“However, according to some refugees, lawyers and people within Dimia, Malyar and Sayar were a lot more than that.”

26. Paragraph 19 goes on to recite that people recall that “the pair” worked for a particular Afghan warlord who was later an Osama bin Laden supporter whose political party has a link to the Pakistani Secret Service (paragraphs 19-20).

27. To the ordinary reasonable reader, these two plaintiffs, in business together doing the same work while being brothers and have names that sound very similar, are rather like Tweedledum and Tweedledee. It is important to allow for the ordinary reasonable reader of such an article to engage in a certain amount of loose thinking and reading between the lines, in accordance with the test described by Hunt CJ at CL in Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165. Hunt CJ at CL explained these principles as follows:

“The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed: Capital and Counties Bank Ltd v George Henty & Sons (at 744, 771); English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440 at 452-453. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book ( Morgan v Odhams Press Ltd (at 1254, 1269)), and the less the degree of accuracy which would be expected by the reader: ibid at 1270; Steele v Mirror Newspapers Ltd (at 373). The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking: Lewis v Daily Telegraph Ltd (at 277); Morgan v Odhams Press Ltd (at 1245); Steele v Mirror Newspapers Ltd (at 373); Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641; Parker v John Fairfax & Sons Ltd (at 8). There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual: Lewis v Daily Telegraph Ltd [1963] 1 QB 340 at 374. The principles stated in these last two paragraphs – as encapsulated in Farquhar v Bottom (at 385-386) – have been adopted in this Court: see, eg, John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 at 719; Crampton v Nugawela (1996) 41 NSWLR 176.”

28. Having made these general observations, I now consider the challenges to form and capacity raised in argument before me today.

The first plaintiff

Imputation (a):

29. It is asserted that because the words in paragraph 17, denying employment, are attributed to the second plaintiff, that this so how modifies the assertion in the previous paragraph that both the plaintiffs worked in the camp. However, the assertion that both the plaintiffs worked in these camps is not rendered anodyne by this admission by one of them. The ordinary reasonable reader could just as easily interpret this as being an admission on behalf of both. This is a matter for determination by the jury.

Imputations (b), (f) and (g):

30. As the matter complained of does assert that the first plaintiff worked at the identified detention camps, imputations about spying are capable of arising. The fact that these imputations relate to conduct in the past and the first plaintiff may have changed his views or express different views does not necessary mean he has stopped being a spy. Anyone familiar with the concept of a spy in popular literature will be aware that spies can sometimes be double or triple agents. It is a matter for the jury to determined the nature and extent of any activities of the first plaintiff in relation to his association with the Pakistani Secret Service ISI, his association with ASIO and his association with a warlord who is a supporter of Osama bin Laden.

Imputation (h):

31. I reject the submission that this imputation is too vague and elusive. It is framed in the words from the matter complained of and its meaning is clear.

Imputations (i), (j) and (k):

32. These imputations relate to the circumstances in which two persons who sought advice from the plaintiffs died. One went back to Afghanistan voluntarily, having been assured that it was safe and the other went back because the plaintiff did not go ahead with his immigration application. The defendant submits that there is no assertion in the matter complained of that any misleading conduct by the first plaintiff lead Mr Bilal to be under the impression that the first plaintiff was a lawyer. However the matter complained of recites that Mr Bilal told people he paid the first plaintiff more than $2,000 to take his case to the Federal Court because he was “under the impression that Sayar was a lawyer”. The first plaintiff’s explanation was that there was a linguistic confusion because there was no clear distinction in the Pashtun language between the words “adviser” and “lawyer”. He goes on to deny that the $2,000 was paid, although he conceded that he had been paid "about $600 to translate some tapes” for Mr Bilal. In my view it is a matter for the jury to determine whether this conduct by the first plaintiff in accepting money and providing assurances that Mr Bilal’s case would be taken to the Federal Court is a matter capable of giving rise to an imputation of misleading conduct. In particular I do not accept the submission that Mr Bilal’s mistaken impression is explained as a result of linguistic ambiguity. The whole flavour of the matter complained of, which contains a series of suggestions that both plaintiffs have been less than honest about a number of matters, is capable of being to the contrary. Whether it is or not is a matter for the jury to decide.

Imputations (l) and (m):

33. It is asserted that these imputations go too far. Whether they go too far or not is a matter for the jury to determine.

The second plaintiff

34. Although imputations (h) to (k) are differently drafted, the imputations pleaded in relation to the second plaintiff were challenged on the same basis. I repeat my findings for the first plaintiff in relation to the second plaintiff on these issues. All imputations pleaded will go to the jury for each of the plaintiffs, although the defendant is entitled to challenge the imputations that are to replace (c), (d) and (e).

Costs

35. The substantial issue before me today was the issue of whether or not a s 7A jury should be empanelled. The plaintiffs lost on that issue. However, the plaintiffs were successful in relation to all of the imputations, save for the three imputations which the plaintiffs agreed to withdraw and replead.

36. On balance the defendant has enjoyed at least equal success to the plaintiffs. As the issue of s 7A jury trial was a more complex issue, although occupying the same amount of time, it is appropriate that I should make an order that these costs be the defendant’s costs in the cause.

37. A s 7A jury trial must be set down for hearing. I have listed this matter for directions on Friday 23 May 2008 at 9:00am by which date the parties should be ready to advise suitable hearing dates for this s 7A jury trial.

Orders:

38. Accordingly the orders that I make are as follows:

(1) Grant leave to the plaintiff to withdraw imputations (c), (d) and (e) for each of the first and second plaintiffs, with liberty to replead.
(2) Dismiss the plaintiff’s application for all issues to be determined by the jury instead of a jury empanelled pursuant to s 7A Defamation Act 1974 (NSW).
(3) All imputations, including any repleaded imputation(s) to replace imputations (c), (d) and (e) for each of the first and second plaintiffs (subject to any challenge to the repleaded imputation(s) by the defendant), are to go to the s 7A jury.
(4) The costs of this application are the defendant’s costs in the cause.
(5) Matter stood over to the Defamation List on Friday 23 May 2008 at 9:00am to allocate a s 7A jury trial hearing date.

Schedule

1. Lost in translation

2. The dangerous undercurrents of refugee politics

3. Complaints about the activities of two Afghan interpreters have reached a level where investigation seems likely.

4. Story Julie Macken

5. 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.

6. After 9500 refugee applications and five years, this chapter in Australia's history seems to be finally drawing to a close.

7. 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.

8. But first a brief history.

9. 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."

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. However, according to some refugees, lawyers and people within Dimia, Malyar and Sayar were a lot more than that.

19. 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.

20. 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."

21. 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."

22. 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.

23. 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."

24. All of this would have remained a footnote in recent history had Malyar not been put in such a powerful position by Dimia.

25. 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.

26. "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."

27. 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.

28. 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.

29. 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.

30. But Malyar's work on Nauru went much further than translating and interpreting.

31. 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.

32. 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.

33. 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."

34. 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."

35. 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."

36. 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.

37. Within 10 months of his return home, Nazari was shot dead by Taliban forces while riding his motorbike through the Zardak Pass.

38. 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."

39. 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.

40. 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.

41. [“Within 10 months of his return home, Nazari was shot dead by Taliban forces while riding his motorbike”]

42. [Picture with caption – “Asylum seekers on Nauru found that interpreters’ opinions carried great weight in the refugee application process.”]

43. 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.

44. 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.

45. 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.

46. 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.

47. 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.

48. 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."

49. 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."

50. 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.

51. 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.

52. 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.

53. 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.

54. 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.

55. "The proceedings took place in my absence," Sayar Dehsabzi argues. "The judge was reasonable and honest, but he was wrong."

56. 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.

57. Labor's spokesman for population, Laurie Ferguson, has also had a number of Afghans on TPVs approach him with serious complaints about the brothers.

58. 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."

59. 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.

60. 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."

61. 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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