Kazal v Fairfax Media Publications Pty Limited

[2015] NSWSC 1336

Supreme Court

New South Wales

Medium Neutral Citation:	Kazal v Fairfax Media Publications Pty Limited [2015] NSWSC 1336
Hearing dates:	11 September 2015
Decision date:	11 September 2015
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [28]
Catchwords:	PRACTICE AND PROCEDURE – pleadings – defamation proceedings - application for leave to amend statement of claim - objections taken to form and capacity of proposed imputations – whether word “corruptly” makes proposed imputations bad in form
Cases Cited:	Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148
Texts Cited:	Russell on Crime, 12th ed, 1964
Category:	Procedural and other rulings
Parties:	Oscar Kazal (Plaintiff) Fairfax Media Publications Pty Limited (First Defendant) Fairfax Digital Australia & New Zealand Pty Limited (Second Defendant) Linton Besser (Third Defendant) Kate McClymont (Fourth Defendant)
Representation:	Counsel: Mr B R McClintock SC/Mr J B Kay Hoyle (Plaintiff) Mr T Blackburn SC/ Mr M A Polden (Defendants)     Solicitors: Somerset Ryckmans (Plaintiff) Banki Haddock Fiora (Defendants)
File Number(s):	2014/82498

Judgment

Introduction

1. The plaintiff, Oscar Kazal, commenced proceedings for damages for defamation arising out of publications by the defendants in March 2013 (the Sixth Matter Complained Of) and May 2013 (the Seventh and Eight Matters Complained Of). The publications, headed “Bad Company”, concerned members of the Kazal family, including the plaintiff, and their relationship with John David, a business man who was, for a time, incarcerated in the United Arab Emirates, having previously been associated in business ventures with the Kazal family in Australia. The publications also purport to document the way in which the Kazal family does business and explain their evident success by reference to the means adopted by them, including by currying favour with politicians.

2. There is an issue, which need not be resolved for present purposes, whether the publication was solely online (for which the second defendant was responsible), or whether there was also a print version (for which the first defendant was responsible). The journalists, Linton Besser (the third defendant) and Kate McClymont (the fourth defendant), are also parties.

3. The plaintiff sought leave to amend his statement of claim. The draft version, which was marked “MFI1”, was the subject of objections from the defendants, the scope of which narrowed in the course of the hearing.

The imputations to which objection is pressed

Imputation 10(a)

4. The plaintiff alleges:

“10   The Sixth Matter Complained Of in its ordinary and natural meaning was defamatory of the plaintiff, in that it carried the following defamatory meanings:

a.   The plaintiff sought to corruptly influence politicians to advance his personal interests and those of his family by organising lavish trips to the UAE and restaurant dinners for those politicians [The whole of the Sixth Matter Complained Of, in particular, lines F 192-195, F260-265]”

The parties’ submissions

5. Mr Blackburn SC, who appeared with Mr Polden on behalf of the defendants, submitted that the word “corruptly” was inherently ambiguous and that, accordingly, paragraph [10] was bad in form. He relied on Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 (Drummoyne) at 138 per Gleeson CJ where the test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155 was approved: namely a formal objection to an imputation is to be resolved by asking whether there is likely to be confusion at either the pleading or the trial stages in relation to the meaning for which the plaintiff contends. He also referred to Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 40 - 41 where Hunt J emphasised the importance of imputations being pleaded in proper form in order that the matter that the defendant has to prove in order to justify the imputation be sufficiently clear.

6. Mr Blackburn also relied on Drummoyne in support of the proposition that the word “corruptly” is redolent with different meanings. He referred in particular to what Gleeson CJ said at 138 as follows:

“Depending upon the context, for example, it can mean that a person takesbribes, or that he abuses power entrusted to him, or that he improperlyobtains private benefits from a public position.”

7. Mr Blackburn identified the following meanings as among those encompassed by the word “corruptly” as it applies to a private person who is not the holder of public office:

1. Bribing a holder of public office, including a politician, by lavishing gifts on him or her, for the purposes of obtaining an unauthorised benefit.

2. Showering a politician with favours by lavishing gifts on the politician with a view to obtaining favourable or preferential treatment or merely greater access to such politician.

8. Mr Blackburn pressed the capacity objection, but only, as I understood it, to protect the defendants’ position, depending on the ruling as to the form objection.

9. Mr McClintock SC, who appeared with Mr Kay Hoyle on behalf of the plaintiff, contended that, in the context of the imputation as pleaded, it was clear that the word “corruptly” was being used in the context of the plaintiff’s providing benefits to politicians with a view to obtaining unmerited favours. Mr McClintock offered to replead imputation 10(a) to insert after the word “corruptly” “(in the sense of obtaining an unmerited benefit)”. Mr Blackburn did not accept this amendment as curing the difficulty or removing the grounds for the defendants’ objection.

Consideration

10. The passage from Drummoyne set out above addresses the possible meanings of the word “corruptly” from the point of view of the public official. However, there is a degree of symmetry in the notion of corruption in that the act of giving as well as the act of receiving a benefit where the recipient is the holder of a public office falls within the term. In my view, the further amendment proposed by Mr McClintock is sufficient to cure the objection and make plain that what is being alleged by the word “corruptly” is tantamount to bribery in the sense used in the common law: namely:

“. . . the receiving or offering [of] any undue reward by or to any person whatsoever, in public office, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honesty and integrity.” [Russell on Crime, 12th edn, 1964]

11. Accordingly, leave to replead as proposed is appropriate.

12. Whether certain imputations are capable of arising is to be adjudged from the standpoint of the ordinary reasonable reader who has read the whole of the matter complained of. One must consider the broad impression conveyed by the matter complained of and not the meaning of each word under analysis. If ordinary reasonable readers may differ as to whether the matter complained of was capable of carrying the imputation then the issue must be left to the jury: Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158 at 164, Hunt CJ at CL (Mason P and Handley JA agreeing). I am satisfied that the imputation is capable of arising from the matter complained of.

Imputation 14(b)

13. The plaintiff alleges:

“14   The Seventh and Eighth Matters Complained Of in their ordinary and natural meaning were defamatory of the plaintiff, in that they carried the following defamatory meanings:   

. . .

b.   The plaintiff had obtained favourable deals from government authorities by corruptly sponsoring politicians to visit the UAE and hosting them at restaurants owned by the plaintiff’s family. [The whole of the seventh and Eighth Matters Complained Of, in particular, lines G/H 1, G/H64-66]”

14. The particular extract from the Matter Complained Of relied upon(in addition to the whole) was:

“Back here in Australia, the Kazals have sponsored a string of federal and state politicians to visit the United Arab Emirates. They have also hosted former prime minister Kevin Rudd and his then deputy Julia Gillard at their restaurants.

The Kazals have also extracted favourable deals from government authorities for their nightclub and restaurants at the Rocks near Sydney Circular Quay.”

15. In the course of argument, Mr McClintock sought leave to replead by deleting the words “corruptly sponsoring politicians” and substituting the words: “providing politicians with financial benefits”.

16. Mr Blackburn accepted that the proposed repleading overcame his form objection but maintained the capacity objection.

Consideration

17. In my view the imputation as amended is capable of arising from the matter complained of. Although it is not the only way it could be read, the sequence of paragraphs and the use of the word “also” in the extract above (when read in the context of the whole publication) is, in my view, capable of suggesting a causal connection between the benefits provided by the Kazals and the benefits obtained by them.

Imputation 14(c)

18. The plaintiff alleged:

14   The Seventh and Eighth Matters Complained Of in their ordinary and natural meaning were defamatory of the plaintiff, in that they carried the following defamatory meanings:   

. . .

c.   the plaintiff, a member of a powerful and politically connected set of siblings, corruptly extracted favourable deals from government authorities for his family’s nightclub and restaurants at the Rocks near Sydney’s Circular Quay [The whole of the Seventh and Eighth Matters Complained of, in particular, lines G/H 60-68]

19. Mr Blackburn maintained his objection to the form of the imputation and also to its capacity. He also contended that it did not differ in substance from imputation 14(b) and ought, accordingly, be struck out.

20. In my view, the imputation is sufficiently clearly pleaded. While there are various nuances incorporated in the word “corruptly”, the word takes its meaning from its context. The context in which it appears in paragraph 14(c) makes it clear what is alleged: namely that the “favourable deals” were the quid pro quo for, or the result of, the plaintiff’s corrupt conduct. I am satisfied that the imputation is capable of arising from the matters complained of.

21. Although it is similar to paragraph 14(b) I consider there to be sufficient difference in substance to warrant its being separately pleaded.

Imputation 14(d)

22. Mr McClintock conceded that these should be struck out with leave to replead.

Imputation 14(f)

23. The plaintiff alleged that the matters complained of gave rise to the following imputation:

“14   The Seventh and Eighth Matters Complained Of in their ordinary and natural meaning were defamatory of the plaintiff, in that they carried the following defamatory meanings:   

. . .

f.   The plaintiff commenced baseless defamation proceedings against Linton Besser, the Herald and Ray Hadley of 2GB who interviewed Linton Besser, to silence their reporting on the activities of the plaintiff and his family [The whole of the seventh and Eighth Matters Complained Of, in particular, lines G/H 1, 71-75]”

24. Mr McClintock offered to replead this imputation by deleting the word “baseless” and inserting the words “which he knew to be baseless” after the word “proceedings”. Mr Blackburn accepted this proposed amendment as sufficient to overcome his objection.

Imputation 14(g)

25. Mr Blackburn withdrew his objection to this paragraph.

Imputation 14(i)

26. Mr McClintock accepted that this paragraph ought be struck out with leave to replead.

Costs

27. The question of costs is reserved. If agreement cannot be reached, submissions should be forwarded to my Associate. If either party seeks an oral hearing, I shall provide for that liberty in the orders.

Orders

28. For the foregoing reasons I make the following orders:

1. Grant leave to the plaintiff to file an amended statement of claim in the form of MFI1 subject to the following rulings:

1. Paragraph 10(a) struck out with leave granted to replead to add the words “(in the sense of obtaining an unmerited benefit)” after the word “corruptly”.

2. Paragraph 14(b) is struck out with leave granted to replead by deleting the words “corruptly sponsoring politicians” and substituting the words: “providing politicians with financial benefits”.

3. Paragraph 14(c) is allowed.

4. Paragraph 14(d) is struck out with leave granted to replead.

5. Paragraph 14(f) is struck out with leave granted to replead by deleting the word “baseless” and inserting the words “which he knew to be baseless” after the word “proceedings”.

6. Paragraph 14(g) is allowed without objection.

7. Paragraph 14(i) is struck out with leave granted to replead.

2. Costs reserved.

3. Direct the parties:

1. To inform my Associate within seven days of any agreement as to the appropriate costs order, with a view to its being made in Chambers;

2. Failing agreement, to provide to my Associate written submissions on costs within 10 days;

3. To notify my Associate within 10 days whether any party seeks a hearing on costs or whether the question of costs can be dealt with on the papers.

4. Grant liberty to apply on two days’ notice.

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Decision last updated: 11 September 2015