Boikov v Dailymail.com Australia Pty Ltd

District Court of NSW|2015-08-28

Judgment

These are my reasons for orders on 28 August 2015 following argument as to the form and capacity of certain imputations pleaded in the statement of claim. The application to strike out the imputations on the basis of capacity is brought under rr 28.2 and 28.3 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). The application to strike out the imputations on the basis of form is brought under UCPR r 14.28, on the basis that the imputations have not been pleaded conformably with the requirements under UCPR r 14.30.
The defendant challenged the form and capacity of imputations 3(a), 3(b), 3(c) and 3(d). The imputations set out in paragraph 3 of the statement of claim are as follows: 1. The plaintiff, an Australian citizen, travelled to the Ukraine to fight with pro-Russian rebels accused of shooting down flight MH17. 2. The plaintiff, an Australian citizen, travelled to the Ukraine to help pro-Russian rebels accused of shooting down flight MH17. 3. The plaintiff, an Australian citizen, condones the shooting down of flight MH17. 4. The plaintiff, an Australian citizen, is reasonably suspected by ASIO of having travelled to the Ukraine for the purpose of fighting with the pro-Russian rebels in the Ukraine. 5. The plaintiff, an Australian citizen, called for people to join him in the fighting in the Ukraine. 6. The plaintiff, an Australian citizen, has committed a criminal offence punishable by a lengthy jail term because he went overseas to fight for the pro-Russian rebels.
Imputations 3(e) and 3(f) were not challenged. Although no order was sought in this regard, I formally note these imputations will go to the jury was pleaded.
I first note the relevant principles of law. The parties agreed that the relevant principles in relation to capacity are as set out by the New South Wales Court of Appeal in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136], where the court held that the determination of capacity is "an exercise in generosity not parsimony", as well as being a "matter of impression … the impression is not of what the words mean but of what a jury could sensibly think they meant", citing Berezovsky v Forbes [2001] EWCA Civ 1251.

Imputations 3(a) and 3(b)

The plaintiff conceded that imputations 3(a) and 3(b) did not differ in substance and elected to rely upon imputation 3(a). Imputation 3(b) is accordingly struck out.

Imputation 3(c)

The solicitors for the defendant in their letter of 27 August 2015 state that this imputation "is incapable of arising from the matter complained of", but provide no details.
In oral submissions, Ms Barnett submitted that, for the plaintiff to "condone" for shooting down of MH 17, he must be shown to have actual knowledge of the shooting down and of the role the separatists played in the shooting down. The ordinary reasonable reader could not draw from the matter complained of that the plaintiff even knew who had shot down MH 17, and still less that he condoned this act. All that the matter complained of does is suggest that the pro-Russian rebels he has joined could be responsible for the shooting down, and not that the plaintiff either knew or approved of this.
Mr Rasmussen answered this submission by listing all the references in the matter complained of to the MH 17 aeroplane and to the plaintiff's whereabouts at the relevant times.
First, while outright guilt for the shooting down is not spelled out, there are strong hints as to who is considered by the defendant to be responsible. The matter complained of contains repeated references to the "pro-Russian rebels" who "shot down MH17", to use the words of the heading. While the words in this heading are put in inverted commas and followed by a question mark ("who shot down MH17?"), the question is whether the "Aussie Cossak" plaintiff could "really" have joined the organisation accused of the act, leaving the impression, for the ordinary reasonable reader, that these rebels are very likely to be the same rebels who shot down MH 17, an impression which is reinforced by the use of repetition throughout the article of these claims, particularly in the following four paragraphs, which are in bold text.
These next four paragraphs describe the plaintiff as someone who is "said to be fighting with pro-Russian rebels" and under ASIO surveillance, and that these "separatists" are "accused of shooting down doomed flight MH17" (paragraph 4). The reader is told that the plaintiff is being monitored by ASIO after he flew to the Ukraine to support these pro-Russian separatists who are, as the caption under the photograph (paragraph 9) states, "the same rebels accused of downing MH17". The reader is then told that, not only has the plaintiff joined the rebels, but that he has "put out a call for others to join him in the fighting overseas".
These allegations are repeated in the caption under the photograph ("said to have taken up arms overseas fighting with pro-Russian separatists, the same rebels accused of downing MH 17") and in paragraph 10: "The separatists he claims to have flown overseas to assist have been blamed for the downing of fatal Malaysia Airlines flight MH17 which was shot down over eastern Ukraine almost two weeks ago."
Paragraphs 11 and 26 contain an additional element inferring responsibility for the shooting down, in that they refer to the fighting in the area surrounding the MH17 crash site; this fighting "has halted any international investigation" (paragraph 26) and prevented retrieval of the victims' bodies (paragraph 11). The plaintiff is described as being in this region (named Donetsk - see paragraph 8) "with a two-star Russian general" (see the photo caption which is paragraph 13 of the matter complained of), and the fact that he "would not confirm" this to the Daily Telegraph is put in a context where doubt is placed on the plaintiff's veracity.
The photographs show the plaintiff on horseback with a sword and shooting a gun while wearing camouflage clothing and in company with similarly-attired shooters. The final photograph shows soldiers in camouflage with machine guns, one of whom is wearing a mask. Those soldiers are identified by inference as soldiers in the MH 17 crash area. This further underlines the theme that there is fighting in the MH 17 crash area, that the plaintiff is involved, that the rebels preventing access to the crash site are suspected of shooting the plane down, in circumstances where the inference is that the plaintiff must know about these matters.
The matter complained of links these allegations to paint a stark picture of the plaintiff as someone who not only flew to the Ukraine to support these separatists and "put a call out for others to join him in the fighting overseas" (paragraph 7), but who has been "fighting" in an area where the pro-Russian rebels who are accused of downing MH 17 are making it impossible MH 17 crash investigators to do their work. His claims that he is "not a threat" (paragraph 21) are, like his denials of being "in Donetsk with a two-star Russian general", put to the reader in a context where reasonable minds may differ as to whether the reader would accept what the plaintiff asserted.
The role of the headline is particularly important. The hint of derision in the headline, arising from the question mark, quotes and use of the word "really" is reminiscent of the matter complained of ("It is beyond understanding. Or is it?") in Jones v Skelton [1963] 3 All E R 952 at 959, where Lord Morris of Borth-y-Gest explained: "The question mark might convey to the reasonable reader the thought and the meaning that there had been some impropriety. The reader, a jury might conclude, was invited to adopt a suspicious approach and so to be guided to the real explanation of what had taken place - an explanation which the writer of the letter did not care or did not dare to express in direct terms. It was therefore open to a jury to decide that a reasonable reader would conclude that the plaintiff had brought improper influence (short of corruption) to bear on his fellow councillors."
Taking all of the above features of the matter complained of into account, this imputation is capable of being conveyed and will go to the jury.

Imputation 3(d)

The defendant submits, and I agree, that an imputation of suspicion of conduct cannot arise at the same time as an imputation of being guilty of the conduct alleged. Imputation 3(d) should be pleaded as a fall-back imputation to imputation 3(a).

References to "Australian citizen"

The defendant's solicitors in their letter of 27 August 2015 complain about the use of the term "Australian citizen" in the imputations where the matter complained of "does not state this".
It is unusual for a defendant to object to the use of a word or phrase on the basis that the matter complained of does not refer to it. The manner in which a defamatory sting is best encapsulated is often contained in words which do not appear in the matter complained of but which summarise its content accurately.
Repeated references to Australian subject-matter are to be found in almost every paragraph of the matter complained of. These include calling the plaintiff "Australian-born" (paragraphs 2 and 6) and "Aussie" (paragraph 1), references to the plaintiff's home in Sydney and to the Cossack society in Australia (paragraphs 7, 19, 20, 24, 28), descriptions of the laws of Australia (paragraphs 3, 8, 20, 21 and 22) and the references to the deployment of Australian Federal Police Officers in the Ukraine area (paragraphs 14 and 30) and the involvement of the Foreign Minister Julie Bishop (paragraph 29). The whole tenor of the matter complained of make it clear that ASIO is "keeping tabs" on the plaintiff because he is an Australian citizen who has travelled to a foreign warzone to support pro-Russian separatists and call for others to join him in the fighting overseas. In those circumstances, the use of the words "Australian citizen" is an essential part of the sting of the imputations. The defendant's application to strike out these words from the imputations on the basis of capacity is dismissed.

Costs

The parties have each had a measure of success in this argument and accordingly each party should pay his or its own costs.

Orders 1. Pursuant to UCPR r 14.30 imputation 3(b) struck out. 2. Pursuant to UCPR r 28.3 imputation 3(c) is capable of being conveyed and will go to the jury. 3. Imputation 3(d) is to be pleaded as a fall-back imputation to imputation 3(a). 4. Pursuant to UCPR r 14.30 the defendant's objections to the use of the words "Australian citizen" in the imputations is dismissed; pursuant to UCPR r 28.3, imputations containing this term are capable of arising. 5. All remaining imputations not challenged will go to the jury. 6. Each party pay his or its own costs. 7. Plaintiff's amended Statement of Claim filed and served in 7 days. 8. Plaintiff respond to defendant's request for further and better particulars in 7 days. 9. Proceedings relisted for directions on 10 September 2015 at 2 pm; note that the defendant may bring an application to strike out any continued claim for special damages in the statement of claim if the request for particulars of these is not answered. 10. Note the defendant has served a Notice of Intention to Elect Trial by Jury in these proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2015

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Judgment (8 paragraphs)

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