Khalil v Fairfax Media Publications Pty Ltd (No. 2)

[2018] NSWDC 40

District Court

New South Wales

Medium Neutral Citation:	Khalil v Fairfax Media Publications Pty Ltd (No. 2) [2018] NSWDC 40
Hearing dates:	1 March 2018
Date of orders:	01 March 2018
Decision date:	01 March 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Imputations 3(a), 3(b), 3(c), 3(d), 3(e) and 3(f) are reasonably capable of being conveyed. (2) Challenges to the form of imputations 3(a) and 3(d) are dismissed. (3) Challenges to the form of imputations 3(b) and 3(e) are dismissed. (4) Grant leave to the plaintiff to replead imputation 3(c) and 3(f) by inserting the words “the Bankstown faction of” before “the notorious Brothers for Life criminal gang” and to plead imputations 3(c) and 3(f) as fall-back imputations to imputations 3(b) and 3(e) respectively. (5) The plaintiff pay the defendant’s costs of 8 February 2018. (6) The costs of 7 December 2017 and today are to be costs in the cause. (7) Plaintiff’s Amended Statement of Claim in 7 days. (8) Defence 28 days thereafter. (9) Matter stood over to the Defamation List on Thursday 19 April 2018.
Catchwords:	TORT – defamation – imputations – form and capacity
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 Bass v TCN Channel Nine Pty Ltd [2000] NSWSC 270 Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118 Casella v Fairfax Media Publications Pty Ltd [2011] NSWSC 1256 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Cornish v Australian Broadcasting Corporation [2014] NSWSC 1936 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Hibbert v Nationwide News Pty Ltd [2015] NSWCA 13 John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541 Khalil v Fairfax Media Publications Pty Ltd [2017] NSWDC 346 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Wagner v Nine Network Australia Pty Ltd [2017] QCA 261 Young v Munro (Supreme Court of New South Wales, Levine J, 12 May 1995)
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

1. These are proceedings for defamation commenced by statement of claim filed on 9 October 2017. I have already made rulings in relation to the defendant’s application for summary dismissal of the proceedings and in relation to objections as to form to imputations 3(a) to 3(f): see Khalil v Fairfax Media Publications Pty Ltd [2017] NSWDC 346.

2. As imputations 3(a) and 3(f) were redrafted, the question of capacity was deferred for a separate argument on 1 March 2018. These are my reasons for rulings pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). I note, however, that in the course of dismissing the defendant’s application for summary judgment, I have already set out in some detail the contents of the matter complained of in terms of its content and structure. Rather than repeat those remarks, I have prepared this judgment on the basis that those observations are included in this judgment. I have attached the PDF of the matter complained of, as prepared by Mr Rasmussen, at the end of this judgment.

3. Although this is a separate trial as to the capacity of the imputations (Hibbert v Nationwide News Pty Ltd [2015] NSWCA 13), the defendant has also raised some fresh objections to the form of imputations. The reasons for my rulings concerning those fresh objections are also set out below.

The relevant test to apply

4. The test in relation to the threshold issue of capacity is generally defined as one of “generosity not parsimony” (Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136]; Wagner v Nine Network Australia Pty Ltd [2017] QCA 261 at [15]). This is all the more the case in this particular publication, which is a multimedia style publication, including a video of the Channel Seven News programme, as well as the written word and a number of photographs of the accused in the trial.

5. As I noted in my previous judgment at [3](b), an interesting question arises as to whether the Channel Seven News programme can form part of the matter complained of in relation to the print publication, but this has not been raised in argument before me so I have proceeded on the basis that the video is included in all issues of capacity. The inclusion of video material in what would otherwise be a print publication is relevant because, as Hunt AJA noted in Amalgamated Television Services v Marsden (1998) 43 NSWLR 158, the ordinary reasonable reader’s capacity for loose thinking is increased by the evanescent nature of the fleeting visual images which are shown.

The publication

6. As noted above, in Khalil v Fairfax Media Publications Pty Ltd at [2]-[4], I have set out the nature and structure of the matter complained of and the paragraphs in which the plaintiffs are named, and I repeat those observations. I add, in relation to imputations 3(a) and 3(d), the repeated use of the word “member” or “members” to describe the warring factions in the Brothers for Life criminal group.

The imputations now pleaded

7. The imputations set out at paragraph 3 of the Amended Statement of Claim (with the abandoned portions struck through) are as follows:

1. The First Plaintiff was a member or associate of the notorious Brothers for Life criminal group (paragraphs 1, 5, 6, 7, 8, 12, 13, 14, 16, 27, 28, 29, 30, 32 and 35).

2. The First Plaintiff was the target of gunmen armed with machine guns because he was opposed to Farhad’s loyal cronies involved in internal and violent feuding by the notorious Brothers for Life criminal gang (paragraphs 1, 5, 6, 7, 8, 12, 13, 14, 16, 27, 28, 29, 30, 31, 32 and 35).

3. The First Plaintiff was shot in a drive-by shooting because of his association with members of the notorious Brothers for Life criminal gang (paragraphs 1, 5, 6, 7, 8, 12, 13, 14, 16, 27, 28, 29, 30, 32 and 35).

4. The Second Plaintiff was a member or associate of the notorious Brothers for Life criminal group (paragraphs 1, 5, 6, 7, 8, 12, 13, 14, 16, 27, 28, 29, 30, 32 and 35).

5. The Second Plaintiff was the target of gunmen armed with machine guns because he was opposed to Farhad’s loyal cronies involved in internal and violent feuding by the notorious Brothers for Life criminal gang (paragraphs 1, 5, 6, 7, 8, 12, 13, 14, 16, 27, 28, 29, 30, 31, 32 and 35).

6. The Second Plaintiff was shot in a drive-by shooting because of his association with members of the notorious Brothers for Life criminal gang (paragraphs 1, 5, 6, 7, 8, 12, 13, 14, 16, 27, 28, 29, 30, 32 and 35).

Imputations 3(a) and 3(d)

8. These are the only imputations which are pleaded to assert that each of the plaintiffs was a member of the notorious Brother for Life criminal group.

9. Mr Lewis submits that these imputations are incapable of arising because there is nothing in the portion of the matter complained of in which the incident involving the plaintiffs is described (or for that matter elsewhere in the publication) identifying either of the plaintiffs as “members” of the Brother for Life gang. The only reference to the plaintiffs is that they were in the motor vehicle owned by Mr Mahmoud, who was identified as being the target of the shooting, and the matter complained of is asserted to make it clear that they were simply in the wrong place at the wrong time. It is submitted that the only way that the imputations could be conveyed was if the reader “impermissibly relied upon his or her own prejudices” (see letter of Banki Haddock Fiora dated 21 February 2018).

10. I do not accept this argument because it is based on a selective reading of the paragraphs dealing with the shooting incident and not upon the text of the whole of the matter complained of. This is a sensational publication which identifies not only the offenders, but also their victims, as being gang members involved in a violent internal dispute characterised by a series of shootings by the rival factions. All the shootings and victims are faction-related. Even the thirteen year old girl referred to in paragraphs 23 and 24 (who unlike the plaintiffs is not named) is identified as being the sister of “a low ranking Brothers for Life member”.

11. The reporting of the status of this teenage victim (anonymised and clearly identified as the sister of a member, not a member) is additionally very different to the manner in which the plaintiffs are named and are identified in the list at the commencement of the video, which is embedded in the matter complained of, as being one of the persons shot while “Sydney’s notorious gang is at war with itself”, the inference being that they are gang members who were shot by rivals in the gang.

12. On the generous test identified by the New South Wales Court of Appeal in Corby v Allen & Unwin Pty Ltd, each of the plaintiffs, named in the video and referred to again by name in paragraph 29 (where it is noted they “miraculously survived being stormed by gunman armed with machine guns”) is sufficient to give rise to the imputation. For that reason, whether or not each of the plaintiffs is an actual member of the Brothers for Life gang, or in some other way associated with them, is a question for determination by the jury or tribunal of fact. It was for these reasons that I made a ruling that each of these imputations was reasonably capable of being conveyed.

13. As to the form of the imputation, Mr Lewis also submitted that there was nothing defamatory about being in a “criminal group” and that evidence of some criminal act was required.

14. I do not accept this submission (which really is more an objection to capacity and/or defamatory meaning rather than form), in that what is asserted is that membership of the group is not capable of being defamatory. Mr Lewis submitted that it was possible to be a member of a disreputable organisation or to have a disreputable employer (for example, the Mafia) but that merely being a member, without more, did not amount to a defamatory sting.

15. However, the plaintiffs’ wrongful conduct is identified in the matter complained of. As McCallum J noted in Cornish v Australian Broadcasting Corporation [2014] NSWSC 1936, distinguishing Casella v Fairfax Media Publications Pty Ltd [2011] NSWSC 1256 at [26], not only is each of the plaintiffs identified, but the conduct impugned to them, namely their association with Mr Mahmoud, who was inferentially intending to carry out some form of attack on Mr Farhad’s address by obtaining details of where he lived, is also identified. Even if that were not the case, I am of the view that calling a person a member of Brothers for Life (or, for that matter, merely sympathising with or supporting it) may, depending upon the context, be sufficient to be defamatory.

16. It was for these reasons that I determined that each of these imputations was reasonably capable of being conveyed.

Imputations 3(b) and 3(e) and imputations 3(c) and 3(f)

17. These imputations resembles each other but differ in a vital factor, in that imputations 3(b) and 3(e) identify a degree of active involvement in opposition to Mr Farhad and his loyal cronies, whereas imputations 3(c) and 3(f) identified the reason for his being shot as being the fact that he was in a rival faction, namely the Bankstown faction of the Brothers for Life criminal gang.

18. In the course of submissions, Mr Rasmussen agreed that these imputations could not both arise at the same time and that imputation 3(c) must be pleaded as a fall back to imputation 3(b).

19. Mr Lewis’ submissions that the plaintiffs could not have been the target for either reasons is contrary to the language not only of paragraphs 28 and 29 but also the language and content of the whole of the matter complained of (and in particular the listing of these two men as two of the persons who were shot in the course of the gang war). They were simply unlucky to be there at the time of the shooting.

20. The whole flavour of the matter complained of, as well as the content (violent shootings of rival gang members) tells against such an anodyne conclusion. The ferocity of the machine-gun attack, which the plaintiffs only “miraculously” survived, was such that the ordinary reasonable reader, at the threshold level permissible for capacity argument, would assume that this shooting (unlike that of the thirteen year old girl, who was shot through a closed door) was no accident.

21. Whether or not each of the plaintiffs was participating in Mr Mahmoud’s plot against Mr Farhad and his cronies, or merely a member of Mr Mahmoud’s faction, is a matter for determination by the jury.

22. It was for these reasons that I held that each of imputations 3(b), 3(c), 3(e) and 3(f) were reasonably capable of being conveyed, noting that the imputations are to be pleaded in the alternative.

23. As to form, Mr Lewis raised an objection to the use of the word “cronies”, for two reasons. First, “cronies” is the actual word used in the matter complained of; second, “crony” is asserted to be a slang word.

24. As to the first objection, the New South Wales Court of Appeal has permitted the use of the actual word or words selected by the publisher so long as the use of the exact words does not “lead to any obscurity” (Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 at [29] per McColl JA; see also John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541 per Hodgson JA at [52]-[54]). In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 688C, Hutley JA stated:

“Though a defendant is entitled to know the case he has to meet, it is strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words it has used, so that it is embarrassed in justifying it. This must mean it does not know what it is alleged an ordinary reasonable hearer would make of it.”

25. In the present case, the word “crony” accurately encapsulates the meaning of the matter complained of, namely a trusted companion or partner in a criminal organisation.

26. Nor do I accept that “crony” is in any event a slang term. According to Wiktionary, “crony” was coined between 1655 and 1665, from the ancient Greek, to mean “friend of long standing”, although it later came to have an illegal connotation. Samuel Pepys used the word in his diary, according to the detailed discussion of the word “crony” by William Safire in “The I’s Have It”, The New York Times, 30 October 2005. That is an impressive pedigree for any word in the English language.

27. Even if the word “crony” was to be considered as mere slang, the entitlement to use slang words in imputations has long been recognised. In Young v Munro (Supreme Court of New South Wales, Levine J, 12 May 1995), words such as “conman” were permitted; similarly, in Bass v TCN Channel Nine Pty Ltd [2000] NSWSC 270 at [6] per Dunford J and on appeal (Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118 at [6]) the word “shonky” was permitted.

28. I reject the objection to the use of this word on this basis as well.

Costs

29. Taking into account the prior history of these proceedings including the plaintiff being unready on a previous occasion, the appropriate costs order is to be costs in the cause.

Orders

1. Imputations 3(a), 3(b), 3(c), 3(d), 3(e) and 3(f) are reasonably capable of being conveyed.

2. Challenges to the form of imputations 3(a) and 3(d) are dismissed.

3. Challenges to the form of imputations 3(b) and 3(e) are dismissed.

4. Grant leave to the plaintiff to replead imputation 3(c) and 3(f) by inserting the words “the Bankstown faction of” before “the notorious Brothers for Life criminal gang” and to plead imputations 3(c) and 3(f) as fall-back imputations to imputations 3(b) and 3(e) respectively.

5. The plaintiff pay the defendant’s costs of 8 February 2018.

6. The costs of 7 December 2017 and today are to be costs in the cause.

7. Plaintiff’s Amended Statement of Claim in 7 days.

8. Defence 28 days thereafter.

9. Matter stood over to the Defamation List on Thursday 19 April 2018.

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Khalil - Matter Complained Of (3.16 MB, pdf)

Decision last updated: 07 March 2018