Khalil v Fairfax Media Publications Pty Ltd - [2017] NSWDC 346

District Court

New South Wales

Medium Neutral Citation: Khalil v Fairfax Media Publications Pty Ltd [2017] NSWDC 346
Hearing dates: 30 November 2017
Date of orders: 07 December 2017
Decision date: 07 December 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Defendant’s application for summary dismissal of the proceedings refused.
(2) Grant leave to the plaintiffs to replead imputations 3(a) to 3(f).
(3) Amended Statement of Claim to be filed and served in 7 days.
(4) Costs reserved with liberty to apply.
(5) Liberty to the parties to bring in Short Minutes of Order for a timetable for the proceedings.

Catchwords: TORT – defamation – application for summary dismissal of claim on the basis that no defamatory imputations could arise – nature of test for summary dismissal – application refused – challenge to form of imputations – whether “involved” is a “weasel word” – whether challenges to the form and capacity of imputations may be made on such a basis – imputations struck out with leave to replead
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited: Accommodation West Pty Ltd v Aikman [2017] WASC 157
Adeang v Australian Broadcasting Corporation [2016] FCA 1200
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679
Dunsec Pty Ltd v Nationwide News Pty Ltd [2000] NSWCA 155
Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152
Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763
Hepburn v TCN Channel Nine [1984] 1 NSWLR 386
Hockey v Fairfax Media Publications Pty Ltd (2015) 332 ALR 257
Lim v TVW Enterprises Pty Ltd [2002] WASC 214
Ma Ching Kwan v John Fairfax Publications Pty Ltd [1998] NSWSC 321; Court of Appeal, Mason P Meagher and Handley JJA, 30 July 1998 (unreported)
Maher v Nationwide News Pty Ltd (No 2) [2013] WASC 254
Murphy v Nationwide News Pty Ltd (No 2) [2017] FCA 781
Pickering v Publishing & Broadcasting Pty Ltd (Supreme Court of NSW, Levine J, 21 June 1996)
Trkulja v Google Inc [2017] HCATrans 129
Category: Procedural and other rulings
Parties: First Plaintiff: Khalil Khalil
Second Plaintiff: Hassan Souied
Defendant: Fairfax Media Publications Pty Ltd
Representation:
Counsel:
Plaintiffs: Mr R Rasmussen
Defendant: Mr M Lewis
Solicitors:
Plaintiffs: Peter Erman
Defendant: Bank Haddock Fiora

File Number(s): 2017/306390
Publication restriction: None

Judgment

These are proceedings for defamation commenced by statement of claim filed on 9 October 2017. The defendant brings an application for summary dismissal of the whole of the claim on the basis that the matter complained of is incapable of identifying the plaintiffs in any manner capable of giving rise to a defamatory imputation. The defendant alternatively challenges the form and capacity of the imputations pleaded.

The publication

This is a court report of criminal proceedings. It starts with an explanation that it was only after non-publication orders were vacated in the Supreme Court in relation to a lengthy and complex criminal trial involving four members of…

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.

Keep reading for free

Create a free CaseChat account to read Khalil v Fairfax Media Publications Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWDC 346
Decision Date: 07 December 2017

CaseChat Overview and Summary

In the Federal Court, Khalil initiated proceedings against Fairfax Media Publications Pty Ltd, alleging defamation stemming from various publications. The plaintiff contends that the defendant's articles implied he was involved in criminal activities, which the plaintiff argues is defamatory. Fairfax Media applied for summary dismissal, arguing that the allegations were not defamatory as no reasonable reader would infer the plaintiff's involvement in criminal activities from the publications.

The court was tasked with determining the validity of Fairfax Media's application for summary dismissal and whether the plaintiff's allegations could be considered defamatory. The court had to assess whether the imputations made by the defendant were capable of conveying defamatory meanings, and whether the plaintiff's claims could proceed to a trial. The court also examined the arguments concerning the form of the imputations and whether certain words could be deemed as "weasel words" that would prevent the claim from being dismissed summarily.

The court held that the application for summary dismissal was not appropriate since the imputations, though potentially imprecise, could be understood by a reasonable reader as defamatory. The court found that the plaintiff's allegations, although not perfectly phrased, were sufficient to allow the case to proceed. The court struck out certain imputations but granted leave to the plaintiff to replead them. The court's decision allowed the plaintiff to amend their Statement of Claim to clarify the defamatory imputations, ensuring that the allegations were sufficiently precise for the case to continue.

The court ordered that the defendant's application for summary dismissal be refused. It allowed the plaintiff to amend their Statement of Claim within seven days to address the identified issues. The court also granted leave to both parties to prepare Short Minutes of Order to establish a timetable for the proceedings. Costs were reserved, with the liberty for either party to apply for costs at a later stage.

Orders

Orders of the court

(1) Defendant’s application for summary dismissal of the proceedings refused.

(2) Grant leave to the plaintiffs to replead imputations 3(a) to 3(f).

(3) Amended Statement of Claim to be filed and served in 7 days.

(4) Costs reserved with liberty to apply.

(5) Liberty to the parties to bring in Short Minutes of Order for a timetable for the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Khalil v Fairfax Media Publications Pty Ltd [2017] NSWDC 346
Hearing dates:	30 November 2017
Date of orders:	07 December 2017
Decision date:	07 December 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendant’s application for summary dismissal of the proceedings refused. (2) Grant leave to the plaintiffs to replead imputations 3(a) to 3(f). (3) Amended Statement of Claim to be filed and served in 7 days. (4) Costs reserved with liberty to apply. (5) Liberty to the parties to bring in Short Minutes of Order for a timetable for the proceedings.
Catchwords:	TORT – defamation – application for summary dismissal of claim on the basis that no defamatory imputations could arise – nature of test for summary dismissal – application refused – challenge to form of imputations – whether “involved” is a “weasel word” – whether challenges to the form and capacity of imputations may be made on such a basis – imputations struck out with leave to replead
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Accommodation West Pty Ltd v Aikman [2017] WASC 157 Adeang v Australian Broadcasting Corporation [2016] FCA 1200 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 Dunsec Pty Ltd v Nationwide News Pty Ltd [2000] NSWCA 155 Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 Hepburn v TCN Channel Nine [1984] 1 NSWLR 386 Hockey v Fairfax Media Publications Pty Ltd (2015) 332 ALR 257 Lim v TVW Enterprises Pty Ltd [2002] WASC 214 Ma Ching Kwan v John Fairfax Publications Pty Ltd [1998] NSWSC 321; Court of Appeal, Mason P Meagher and Handley JJA, 30 July 1998 (unreported) Maher v Nationwide News Pty Ltd (No 2) [2013] WASC 254 Murphy v Nationwide News Pty Ltd (No 2) [2017] FCA 781 Pickering v Publishing & Broadcasting Pty Ltd (Supreme Court of NSW, Levine J, 21 June 1996) Trkulja v Google Inc [2017] HCATrans 129
Category:	Procedural and other rulings
Parties:	First Plaintiff: Khalil Khalil Second Plaintiff: Hassan Souied Defendant: Fairfax Media Publications Pty Ltd
Representation:	Counsel: Plaintiffs: Mr R Rasmussen Defendant: Mr M Lewis Solicitors: Plaintiffs: Peter Erman Defendant: Bank Haddock Fiora
File Number(s):	2017/306390
Publication restriction:	None