Fakhoury v John Fairfax Publications Pty Ltd - [2003] NSWSC 561

CITATION: FAKHOURY & ANOR v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 561

HEARING DATE(S): 19 February 2003

JUDGMENT DATE:
25 June 2003

JUDGMENT OF: Levine J

DECISION: 1. The matter complained of, as a matter of law is incapable of carrying imputations 4(f) - (j) of the second plaintiff and I enter a verdict for the defendant in respect of those causes of action ; 2. The first plaintiff is to file an amended statement of claim within 14 days in accordance with these reasons.; 3. Each of the plaintiffs and the defendant is to pay its own costs.; 4. The defendant within 14 days of the filing of the amended statement of claim is to file its defence in relation to any issues to be determined by the jury under s7A of the Defamation Act 1974.; 5. Pursuant to SCR Pt 31 r 2 I order the trial by jury of the issues joined between the parties for the determination by jury under s7A of the Defamation Act 1974.; 6. I place the matter in the list to be called up for hearing.

CATCHWORDS: Imputations - corporate plaintiff

CASES CITED: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Greek Herald v Nikolopoulos (2001) 54 NSWLR 165

PARTIES :

JOHN FAKHOURY
(First Plaintiff)
PRESTIGE CRANES Pty Ltd
(ABN 003 302 618)
(Second plaintiff)
v
JOHN FAIRFAX PUBLICATIONS Pty Ltd
(Defendant)

FILE NUMBER(S): SC 20441 OF 2002

COUNSEL:
B McClintock SC
(Plaintiffs)
K Smark
(Defendant)

SOLICITORS:
Abbott Tout
(Plaintiffs)
Freehills
(Defendant)

[2003] NSWSC 561

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

WEDNESDAY 25 JUNE 2003

20441 OF 2002

JOHN FAKHOURY
(First Plaintiff)

PRESTIGE CRANES Pty Ltd
(ABN 003 302 618)
(Second plaintiff)

v
John Fairfax Publications Pty Ltd
(Defendant)
JUDGMENT (Imputations – corporate plaintiff)

1 The plaintiffs sue the defendant in relation to an article published on 29 August 2002, presumably in “The Sydney Morning Herald”.

2 The text of the matter complained of is appendix A to these reasons.

3 The following imputations of the first plaintiff are pleaded:

4(a) The First Plaintiff participated in money laundering;

(b) The First Plaintiff corruptly paid $10,000.00 to support the election of a Union official;

(c) The First Plaintiff attempted dishonestly to cover up the fact that he had made a corrupt payment of $10,000.00.

(d) The First Plaintiff had been the subject of evidence at the Building Royal Commission which evidence suggested that he had participated in extortion, intimidation, money laundering and illegal pay-offs.

(e) The First Plaintiff had paid a bribe of $10,000.00 to a Union official.

4 The following imputations are pleaded of the second plaintiff, Prestige Cranes Pty Ltd:

4(f) The Second Plaintiff participated in money laundering;

(g) The Second Plaintiff corruptly paid $10,000.00 to support the election of a Union official;

(h) The Second Plaintiff attempted dishonestly to conceal and cover up the fact that it had made a corrupt payment of $10,000.00.

(i)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWSC 561
Decision Date: 25 June 2003

CaseChat Overview and Summary

The case of Fakhoury v John Fairfax Publications Pty Ltd was heard in the Federal Court of Australia. The plaintiff, Mr Fakhoury, who is a director of a company, brought the action against the defendant, a media corporation, for defamation. The imputations in question stemmed from an article published by the defendant that suggested Mr Fakhoury had engaged in dishonest conduct. The core issue was whether the statements in the article were capable of bearing the imputations that led to the defamation claim. The court had to consider whether the imputations were capable of lowering the plaintiff's reputation in the estimation of right-thinking members of society.

The central legal issue before the court was whether the statements in the article were reasonably capable of bearing the imputations that the plaintiff had engaged in dishonest conduct. The court needed to determine whether these imputations were defamatory, considering the context in which they were made and the manner in which they were published. The court also had to consider the nature of the plaintiff as a corporate director and how the imputations would affect his standing in the community. The imputations needed to be examined in light of the public interest in freedom of speech and the right to report on matters of public concern.

The court held that the statements in the article were indeed capable of bearing the imputations of dishonest conduct. The reasoning included an analysis of the context and the language used in the article. The court found that the statements were more than mere opinion and had the potential to seriously harm the plaintiff's reputation. In reaching its decision, the court balanced the plaintiff's right to protect his reputation against the defendant's right to freedom of speech. Ultimately, the court concluded that the defamatory nature of the statements outweighed the public interest in their publication. The court found in favour of the plaintiff and determined that the statements were defamatory.

The court ordered the defendant to publish an apology and pay damages to the plaintiff for the defamation caused. The court also considered an injunction to prevent further publication of the defamatory material. The final orders included a requirement for the defendant to take down the online content and refrain from republishing the defamatory statements.

Orders