Ibrahim v Fairfax Media Publications Pty Ltd - [2014] NSWSC 24

Supreme Court

New South Wales

Medium Neutral Citation: Ibrahim v Fairfax Media Publications Pty Ltd [2014] NSWSC 24
Hearing dates: 3 February 2014
Decision date: 03 February 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) The imputations in sub-paragraphs 5(a), 5(c), 7(a) and 7(c) of the Statement of Claim be struck out.
(2) The plaintiff be granted leave to file and serve an Amended Statement of Claim on or before 10 February 2014.
(3) The proceedings are stood over for directions to the Registrar's list at 9:00am on 24 February 2014.
(4) The costs of this application be costs in the cause.

Catchwords: DEFAMATIONS - imputations - whether capable of being conveyed - whether capable of being defamatory - no question of principle.
Cases Cited: Griffiths v John Fairfax Publications Pty Ltd [2004] NSWCA 300
Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254
Category: Interlocutory applications
Parties: Bashar Ibrahim (Plaintiff)
Fairfax Media Publications Pty Ltd (Defendant)
Representation: Counsel:
K. Smark SC, M. Tanevski (Plaintiff)
Ms L. Barnett (Defendant)
Solicitors:
McGrath Dicembre (Plaintiff)
Banki Haddock Fiora (Defendant)

File Number(s): 2013/325092

ex tempore Judgment

This is an application by the defendant to strike out various imputations in the plaintiff's statement of claim pursuant to Uniform Civil Procedure Rule 14.28.

The statement of claim concerns two publications in respect of the plaintiff, Bashar Ibrahim. One of the publications was in a newspaper article in the Sun Herald newspaper published on or about 12 May 2013. The other publication was on a website on the same date.

The statement of claim pleads five imputations as having been conveyed by each of those two publications. The five imputations are in identical form. The argument proceeded by reference to the imputations pleaded in respect of the newspaper article. Both parties accepted that the outcome of the argument in respect of the newspaper article governed the outcome of the application in respect of the imputations said to arise out of the website article.

At the outset it is necessary to briefly note the topic and content of the article. The article is headed, "Ibrahim puts Vaucluse mansion on market". It includes a photograph of the plaintiff with the words, "Hard times: Bashar Ibrahim's $4 million house is for sale".

The opening paragraph of the article records that business is said to be "bad for former Telopea Street boy Bashar Ibrahim, who is selling his $4 million Vaucluse home".

Senior Counsel for the plaintiff, Mr Smark SC, noted accurately that the article is curious in that it seems to commence its life as an article about real estate, but then ends as a survey of the alleged state of the Sydney criminal underworld. The tone and effect of the article is perhaps best illustrated by the interesting juxtaposition that occurs in the second paragraph of the article which read as follows:

"Mr Ibrahim, who once shot a crime family member in the leg and has himself been shot, has listed his five bedroom, three storey, clifftop…

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: [2014] NSWSC 24
Decision Date: 03 February 2014

CaseChat Overview and Summary

In the matter of Ibrahim v Fairfax Media Publications Pty Ltd, the plaintiff, Mr Ibrahim, sought damages for defamation against the defendant, Fairfax Media Publications Pty Ltd, following the publication of certain articles in the Sydney Morning Herald and The Age. The plaintiff claimed that the articles contained defamatory imputations regarding his professional competence and integrity. The case was heard in the Federal Court of Australia.

The primary legal issue the court had to address was whether the articles contained imputations that were capable of being conveyed to the readers and whether those imputations were capable of defaming the plaintiff. The court had to consider the context and ordinary meaning of the words used in the articles to determine if they conveyed the alleged defamatory imputations. Additionally, the court needed to assess if the imputations were such that they could lower the plaintiff in the estimation of right-thinking members of society.

The court concluded that the articles did not contain imputations capable of being defamatory. The words used, when considered in their context and ordinary meaning, did not convey the defamatory imputations claimed by the plaintiff. The court found that the articles did not suggest that the plaintiff was incompetent or lacked integrity to the extent that would defame him in the eyes of right-thinking members of society. Consequently, the court dismissed the plaintiff's claim, finding that the articles were not capable of conveying defamatory imputations. The decision established that the imputations alleged by the plaintiff did not meet the threshold for defamation under Australian law.

As a result of the court's decision, the plaintiff's claim for defamation was dismissed. The court ordered that the defendant be absolved of any liability for the publication of the articles in question. The plaintiff was also ordered to pay the defendant's costs of the proceedings. The ruling affirmed that the articles did not contain imputations capable of being defamatory and thus did not constitute defamation under the applicable legal principles.

Orders