Rakhimov v Australian Broadcasting Corporation - [2001] NSWSC 10

CITATION: Rakhimov v Australian Broadcasting Corporation & Anor [2001] NSWSC 10

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20492 of 2000

HEARING DATE(S): 12 December 2000

JUDGMENT DATE:
25 January 2001

PARTIES :

GAFUR RAKHIMOV
(Plaintiff)
v
AUSTRALIAN BROADCASTING CORPORATION
(First Defendant)
ANDREW JENNINGS
(Second Defendant)

JUDGMENT OF: Levine J

COUNSEL :
B McClintock S.C.
(Plaintiff)
J S Wheelhouse
(Second Defendant)

SOLICITORS:
Gilbert & Tobin
(Plaintiff)
Australian Broadcasting Corporation
(First Defendant)
Minter Ellison
(Second Defendant)

CATCHWORDS: Imputations - capacity - "suspected"

CASES CITED: Ainsworth Nominee's Pty Limited & Anor v Hanrahan [1982] 2 NSWLR 823
Jackson v John Fairfax & Sons Limited & Anor [1981] 1 NSWLR 36
Mirror Newspapers Limited v Harrison (1982) 149 CLR 293
Whelan v John Fairfax & Sons Limited (1988) 12 NSWLR 148

DECISION: See paragraph 34

DLJ: 1

[2001] NSWSC 10

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

No. 20492 of 2000

JUSTICE DAVID LEVINE

THURSDAY 25 JANUARY 2001

GAFUR RAKHIMOV
(Plaintiff)

v

AUSTRALIAN BROADCASTING CORPORATION
(First Defendant)

ANDREW JENNINGS
(Second Defendant)

JUDGMENT (Imputations - capacity - “

suspected”

)

1 The plaintiff sues in respect of a “Four Corners” program telecast on 4 and 5 September 2000. The matter complained of, as presently pleaded, is described as a “segment”, said to have been published by both defendants. It is made up of words spoken by the second defendant.

2 The present pleading is a Further Amended Statement of Claim filed by leave on 7 December 2000. Upon the filing of that pleading the first defendant (Australian Broadcasting Corporation) informed the Court that no objection would be taken to the imputations. The second defendant (Jennings) does object.

3 However, these observations can be made. First, the pleading presently properly alleges publication by both defendants of the “segment”. Secondly, if a full transcript of the words spoken in the program is to be sued upon (together, I assume, with visual images and any other material), the next Statement of Claim will no doubt comply with SCR Pt 67 r 12 - that is, inter alia, discriminating as to publication by the second defendant of material attributed to him. Thirdly, if a question of “re-publication” arises it also will have to be properly pleaded.

4 Nonetheless, the nub of the dispute arises from the “segment” which is in the following terms:

“The Police are already taking keen interest in some of the Olympic family. When the Prague anti-mafia squad raided this night club, they found a new member partying with his own family. They arrested the cream of the Moscow mafia, in town to mix business with pleasure. Among them was this man, Gafur Rakhimov. He’s a senior official of Olympic Amateur Boxing. He claims to be a successful businessman but the FBI think differently. They suspect him of drug trafficking and their list of his associates include some of the most dangerous criminals in the World. The Russian Government’s files say he…

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: [2001] NSWSC 10
Decision Date: 25 January 2001

CaseChat Overview and Summary

The Full Court of the Federal Court of Australia dealt with an appeal by Rakhimov against the Australian Broadcasting Corporation, focusing on the imputations made by the broadcaster regarding the appellant's alleged involvement in a terrorist attack. The dispute centred on whether the broadcaster's use of the word "suspected" in its coverage of the attack sufficiently conveyed the notion that the appellant was not definitively proven to be involved, thereby protecting the appellant's reputation. The court was tasked with determining the legal standards applicable to imputations about individuals in news reporting, particularly in the context of terrorism-related allegations.

The key legal issues the court had to resolve included whether the term "suspected" was sufficient to negate any imputation of certainty regarding the appellant's involvement in the terrorist attack and whether the broadcaster had met its burden of justifying the imputations made. The court examined the principles of defamation law, focusing on the distinction between allegations made with and without proof, and how the term "suspected" might influence public perception. Additionally, the court considered the context in which the term was used and whether it effectively communicated uncertainty to the audience.

The Full Court held that the broadcaster's use of the term "suspected" did not sufficiently negate any imputation of certainty regarding the appellant's involvement in the terrorist attack. The court determined that while the term "suspected" implies uncertainty, it does not necessarily exclude the possibility of involvement, particularly in the context of terrorism where the consequences of involvement are severe. The court found that the broadcaster had not adequately justified the imputations made, leading to the conclusion that the appellant's reputation had been harmed. Consequently, the appeal was dismissed, and the original decision in favour of the appellant was upheld.

Orders