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 2001PARTIES :
GAFUR RAKHIMOV
(Plaintiff)v
AUSTRALIAN BROADCASTING CORPORATION
ANDREW JENNINGS
(First Defendant)
(Second Defendant)JUDGMENT OF: Levine J
COUNSEL : B McClintock S.C.
J S Wheelhouse
(Plaintiff)
(Second Defendant)SOLICITORS: Gilbert & Tobin
(Plaintiff)Australian Broadcasting Corporation
Minter Ellison
(First Defendant)
(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 148DECISION: 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)
AUSTRALIAN BROADCASTING CORPORATIONv
(First Defendant)
(Second Defendant)
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…
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- Case
- [2001] NSWSC 10
- Decision Date
CaseChat Overview and Summary
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.
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