Raymond Solaiman v Fairfax Media Publications Pty Limited

[2008] NSWSC 847

CITATION:	Raymond SOLAIMAN v FAIRFAX MEDIA PUBLICATIONS PTY LIMITED & Anor [2008] NSWSC 847
HEARING DATE(S):	Wednesday 13 August 2008
JUDGMENT OF:	Simpson J
EX TEMPORE JUDGMENT DATE:	13 August 2008
DECISION:	Imputations D(i), D(ii), E(ii), G, H(i), H(ii) and I are struck out. Plaintiff granted leave to replead imputations C, D(ii), H(ii) and I.
CATCHWORDS:	DEFAMATION - Capacity of the article to convey imputations - ordinary reasonable reader taken to have read the whole matter complained of - difference in substance - UCPR 14.30 subrule 3 applicable to defamation actions under the 2005 Act.
LEGISLATION CITED:	Defamation Act 2005 Uniform Civil Procedure Rules Defamation Act 1974
CASES CITED:	Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254; (2007) Aust Torts Reports 81-915 Mirror Newspapers Limited v Harrison [1982] HCA 50; (1982) 149 CLR 293
PARTIES:	Raymond SOLAIMAN (Plaintiff) FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (Defendant)
FILE NUMBER(S):	SC 20202/08
COUNSEL:	S T Chrysanthou (Plaintiff) D Sibtain (Defendant)
SOLICITORS:	Goldsmiths Lawyers (Plaintiff) Freehills (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

SIMPSON J

Wednesday 13 August 2008

20202/08 – Raymond SOLAIMAN v FAIRFAX MEDIA PUBLICATIONS PTY LIMITED & Anor

JUDGMENT

1 HER HONOUR: The plaintiff sues for defamation allegedly arising out of an article published in the Sun Herald on 18 May 2008 under the heading "Crackdown on migration reps". The article is illustrated by a significantly sized photograph of the plaintiff who is identified by name and who the caption makes plain is being or has been "questioned" – the inference, from the whole of the material, being that he has been, or is being, questioned in relation to improprieties as a migration agent.

2 The article, in short, concerns the migration agency industry and refers to questionable practices within that industry. It opens with the assertion that the industry was set to be scrapped and replaced with a government body "as part of a move to help stamp out widespread corruption".

3 There is some more matter stated and towards the end of the article, the plaintiff is named and referred to as a "person of interest" and an instance is given of what is said to have been his participation in seeking immigration status for twenty-two Indian nationals.

4 The claim is governed by the Defamation Act 2005 (“the Act”).

5 The plaintiff pleads that 13 defamatory imputations are conveyed. The defendant challenges the capacity of the article to convey all except one of those.

6 The first imputation pleaded is:

“A. The plaintiff, a migration agent, was corrupt.”

7 On behalf of the defendant, it was argued that the article is not capable of conveying that imputation. Reference was made to the well-known principle that the ordinary reasonable reader is taken to have read the whole of the matter complained of, and in particular, to the decision of the Court of Appeal in Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254; (2007) Aust Torts Reports 81-915. Reference was also made to the decision of the High Court in Mirror Newspapers Limited v Harrison [1982] HCA 50; (1982) 149 CLR 293.

8 In Malcolm, the Court of Appeal re-stated the principle but applied it perhaps more liberally than has hitherto been the case.

9 The principles relating to striking out an imputation are well-known and I do not propose to restate them. Under the system which applies to articles published as at the date of this publication, it is a jury who must determine whether the imputations have in fact been conveyed. Generally speaking, except in a very clear case, the Court will lean towards retaining the role of the jury in that determination.

10 I regard this as somewhat borderline but, for that very reason, I think it is inappropriate to strike out the imputation.

11 There is an assertion of corruption in the industry and the plaintiff is named and is the only member of the industry who is named. The reference to him does not suggest corruption as an individual but the opening paragraph certainly does assert corruption in the industry. It would, in my view, be open to a jury to find that that imputation was conveyed and I decline to strike it out.

12 The second imputation is:

“B. The plaintiff, a migration agent, exploited foreign workers.”

13 Again, the defendant challenges the capacity of the matter complained of to convey the imputation. On behalf of the plaintiff, reliance was placed upon some of the introductory material in the article referring to exploitation of foreign workers and to the specific material concerning the plaintiff.

14 As I think I have already indicated, the material referring specifically to the plaintiff concerned one group of Indian nationals for whom the plaintiff is said to have acted. There is nothing in the article that expressly links the plaintiff with exploitation. However, the plaintiff is introduced into the article with the statement that immigration officers had confirmed that the plaintiff was a “person of interest”. This follows immediately after a paragraph which alleges that "hundreds of Indian tourists" were sent to rural areas where they were exploited.

15 It is the juxtaposition of the paragraph identifying the plaintiff as “a person of interest” with the reference to exploitation that persuades me that, perhaps with a certain amount of permissible loose thinking, an ordinary reasonable reader might link the plaintiff with the alleged exploitation. I decline to strike out imputation B.

16 The next imputation challenged is imputation C, which is:

“The plaintiff, a migration agent, engaged in improper conduct in that he breached the Migration Agent Code of Conduct.”

17 The argument put on behalf of the defendant was that, while the article reported “raids” said to have been conducted two weeks previously that “uncovered” foreign worker exploitation, and a review of the system commissioned by the previous federal government that had investigated possible breaches of the Migration Agents’ Code of Conduct, there was no suggestion that the plaintiff had been the subject of that review.

18 I perceive some difficulties with imputation C as presently framed and grant leave to the plaintiff to replead.

19 Imputation D(i) is:

“The plaintiff, a migration agent, was knowingly involved in the lodgement of grossly unfounded claims with the Department of Immigration.”

20 In those parts of the article that expressly refer to the plaintiff, he is quoted as admitting that he had submitted applications based on false information, and that he had done the wrong thing. However, by no stretch of the imagination could it be inferred from the article that, at the time he submitted the claims, he knew they were false. The clear inference is that he learned that subsequently. The element of “knowingly”, essential to the imputation, cannot be sustained. Imputation D(i) is struck out.

21 The next imputation in question is imputation D(ii) which is in the following terms:

“The plaintiff, a migration agent, was recklessly indifferent in the lodgement of grossly unfounded claims with the Department of Immigration.”

22 I am of the view that the imputation as pleaded overstates what is contained in the article and goes beyond what is reasonably capable of being conveyed. I will strike out imputation D(ii) and give liberty to replead.

23 The next imputation is imputation E(i) which is in the following terms:

“The plaintiff, a migration agent, was knowingly involved in the exploitation of foreign workers, sexual assault and human rights abuses.”

24 Two objections are taken to this imputation. One is that it does not differ in substance from imputation B and that, even under the 2005 Act, the rules of this Court preclude the pleading of imputations which do not differ in substance, and the second is a capacity argument.

25 For the reasons I gave in relation to imputation B, I am of the view that a jury might find this imputation has been conveyed and, accordingly, I will not strike it out on the basis of incapacity of the matter complained of to convey it.

26 An argument was advanced on behalf of the plaintiff that UCPR 14.30 subrule 3 (which prohibits the pleading of two or more imputations that do not differ in substance) does not apply to defamation actions under the 2005 Act. There is nothing in the Uniform Civil Procedure Rules that excludes the application of that rule to claims made under the 2005 Act. The rules in other areas do recognise the 2005 Act. That they have not been amended to exclude the application of Rule 14.30(3) indicates to me that it was intended that the rule continues to apply.

27 In any event, although the difference is subtle, or may appear to be subtle, there is in my view a difference between accusing the plaintiff of himself exploiting foreign workers and accusing him of being knowingly involved in such exploitation and, accordingly, I will allow the imputation to stand.

28 No challenge is made to imputation F.

29 Imputation G is:

“The plaintiff participated in a business that engaged in the exploitation of foreign workers and human rights abuses.”

30 Again, two arguments were advanced; the first that this imputation does not differ in substance from imputation E(i). The second objection was as to form, it being argued that the participation alleged was not specified.

31 The plaintiff again argued that UCPR 14.30(3) does not apply to actions brought under the 2005 Act and expanded the argument that had previously been put by drawing attention to s 7A of the Defamation Act 1974 (the predecessor of the 2005 Act) and s 22(2) of the 2005 Act. The suggestion that was made was that it is only by oversight that the subrule remains in the rules in respect of actions brought under the 2005 Act.

32 I am not prepared to make that finding, particularly having regard to the fact that the defamation rules expressly contemplate the 2005 Act. The subrule has been retained and I infer that was done deliberately.

33 I think the point taken on behalf of the defendant is well taken. There is no difference in substance between participating in a business that engages in the exploitation of foreign workers and as a migration agent being knowingly involved in such exploitation.

34 Accordingly, imputation G will be struck out.

35 It was conceded that imputation H(i) must suffer the same fate as imputation D(i), that imputation H(ii) will suffer the same fate as imputation D(ii). No further argument to the contrary was advanced. Accordingly, imputation H(i) is struck out, as is imputation H(ii). In respect of the latter the plaintiff has leave to replead.

36 Imputation I is:

“The plaintiff broke the law in that he filled out and lodged false protection visa applications.”

37 The objection that was taken was as to the capacity of the publication to convey the imputation in its entirety. On behalf of the defendant it was pointed out that there is no express, or even implied, assertion in the publication that filling out and/or lodging a false protection visa application is a contravention of the law. That is so, but it does not take a very sophisticated reader to infer that this is the case. However, in my view, the ordinary reasonable reader would also assume that, before such a contravention could be established, it would be necessary to show that the person concerned was aware at the time of completing and/or lodging the application, that it contained false information. As I have said above, the tenor of the article is to the contrary of that proposition – it suggests that the plaintiff acted initially unwittingly, but learned later than he had been misinformed by his clients. Imputation I is struck out, with liberty to replead if the plaintiff is so advised.

38 Imputation J is:

“The plaintiff, a migration agent, was party to a scheme that subjected Indian tourists to a life of virtual slavery.”

39 The two objections are as to differing in substance from imputation E(i) and to capacity.

40 I think there is a difference, particularly having regard to the whole of the earlier part of the matter complained of, which asserts in one paragraph that Indian tourists were being sent to rural New South Wales to a life of virtual slavery and in another paragraph asserts exploitation, sexual assault and human rights abuses. I reject the UCPR 14.30(3) objection.

41 For similar reasons as I gave in relation to imputation E, I think the matter complained of is capable of conveying this imputation and a jury would be entitled to find that it did do so and I will allow imputation J to stand.

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