Boikov v Nationwide News Pty Ltd

District Court of NSW|2015-08-28

Judgment

These are my reasons for rulings on the form (r 14.28 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR")) and capacity (UCPR r 28.3) concerning the imputations pleaded by the plaintiff as arising from a series of publications upon which the plaintiff seeks damages for defamation.
The parties agree that the relevant principles in relation to the capacity of the matter complained of to convey imputations are as set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136], and that the relevant principles in relation to the need for precision in imputations are as set out in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 2 NSWLR 135 at 137 and in Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [20].
These issues must be considered separately for each of the publications, which consist of a Daily Telegraph newspaper article (the first matter complained of), the website publication of the newspaper article (the second matter complained of), the newspaper editorial (the third matter complained of), a website publication (the fourth matter complained of, which is not the subject of challenge), an article in the Australian (the fifth matter complained of) and the website publication of this article (the sixth matter complained of). However, the effectively identical nature of the print and website publications means that, for convenience, my rulings may relate to the same imputations pleaded for each such publication where there is no difference in the text.

The second matter complained of - The Telegraph Website

The imputations pleaded to arise from the second matter complained of are as follows (paragraph 8 of the statement of claim): 1. The plaintiff, an Australian citizen, travelled to the Ukraine to join the Ukrainian separatists. 2. The plaintiff, an Australian citizen, travelled to Russia with hate. 3. The plaintiff, an Australian citizen, flew to the Ukraine to recruit support for the pro-Russian rebels accused of shooting down MH17. 4. The plaintiff, an Australian citizen, supports the pro-Russian rebels accused of shooting down flight MH17. 5. The plaintiff, an Australian citizen, condones the shooting down of flight MH17. 6. 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. 7. The plaintiff, an Australian citizen, is a traitor to his country because he sought to fight in a foreign conflict. 8. The plaintiff, an Australian citizen, called for people to take up arms. 9. The plaintiff, an Australian citizen, travelled to the Ukraine to fight with pro-Russian rebels. 10. The plaintiff committed a criminal act punishable by 20 years jail when he went to the Ukraine to fight with pro-Russian rebels.
At the commencement of the argument the plaintiff conceded that imputations 6(a) and 8(a) should be struck out, and I have noted this in my rulings. The remaining imputations under challenge are imputations 6(b) and 8(b), 6(e) and 8(e) and 6(f) and 8(f).

Imputation 6(b) and 8(b)

This imputation is drawn from the headline "ASIO tracks Aussie's trip to Russia with hate". This headline is a somewhat laboured play on words for the name of the 1963 James Bond film "From Russia with Love". (That title was intended to be ironic, as the film was made at the height of the Cold War, when there was little love lost between Russia and the West.) While the phrase has not achieved the status of a saying warranting its inclusion in any dictionary, it is a phrase generally connoting something to do with Russia, but otherwise without any definable meaning.
The difficulty is how to extract a meaning from this headline in the context of the matter complained of. Counsel for the defendant submits that, while the use of the actual words from the matter complained of may be permitted where those words accurately encapsulate the sting of the libel, this is not one of those occasions, relying upon Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [121]. As Hunt A-JA explained: "[121] In Petritsis, Samuels JA said (at 191) that imputations will invariably be a distillation rather than a restatement of the words which were published. That this must be so is a necessary consequence of the facts that (a) words are but instruments by which people express and convey their meaning (Lewis v Daily Telegraph Ltd, at 266), but that (b) outside of legal documents, it is recognised that the words used by people are imprecise instruments for that purpose: Slim v Daily Telegraph Ltd at 171. Very rarely is the act or condition attributed to the plaintiff expressly stated in the matter complained of, rather is it more usually implied or to be inferred: Jones v Skelton [1963] SR 644 at 650. The charge is often to be read only between the lines (Lewis at 258), or by insinuation (Ibid at 280), or it may be so near the surface that it is hardly hidden at all, or it may be more difficult to detect: Ibid at 278. But what is clear, beyond the possibility of any contradiction, is that in very few cases will the words of the matter complained of plainly identify the act or condition attributed to the plaintiff of which he complains. [122] In Feros v West Sydney Radio Pty Ltd (Court of Appeal, 22 June 1982, unreported), Samuels JA (with whom Moffitt P and Reynolds JA agreed) said (at 5): "It is not always sufficient that an imputation should repeat the language of the matter published. Sometimes that will be enough, but more often an imputation must distil rather than recapitulate." Samuels JA went on to say (at 6): "There are two matters of general relevance which the proceedings raise. It is essential that imputations should be clear and precise. This standard will often not be met merely by adopting the language of the matter published. It must be borne in mind that the purpose of an imputation is to specify the meaning which the language of the matter, which may be imprecise or rambling and prolix, is alleged to convey. I add also that the elucidation of the meaning of an imputation should not be left to an application for particulars. Hence an imputation may need to be couched in terms significantly different from those which the matter employs. Further, a plaintiff may rely upon as many imputations as he desires, provided that they do not infringe the requirements of Pt 67 r 11(3). This subrule does not justify or entail rolling up a number of separate and independent defamatory assertions into one imputation.""
This warning about the limitations placed upon the entitlement of a plaintiff to use the exact words of the matter complained of has been cited and followed many times (see, for example, Waller v Nationwide News Pty Ltd [2011] NSWSC 611 at [21]). Its precise application may vary; as McCallum J noted in Haddad v Nationwide News Pty Ltd; Cheikho v Nationwide News Pty Ltd [2013] NSWSC 2027 at [9]: "That jurisprudence is easy to record, but more difficult in the application. There is always room for argument as to the extent to which a clear defamatory sting is captured in words lifted from the matter complained of, or whether the plaintiff must go further in distilling the sense in which those words would be understood by the ordinary reasonable reader."
McCallum J considered, as do I, that the answer is to be found by applying the principles set out by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation at 137. The task is to determine whether the imputation using the actual wording is sufficiently clear, both for pre-trial and trial purposes, in putting the defendant and the tribunal of fact on notice as to the particular act or condition the plaintiff alleges is attributed to him, and the resolution of this issue is effected by careful consideration of the language of the matter complained of.
The difficulty is that the term "to Russia with hate" does not convey with precision any act or condition. Mr Rasmussen agrees that the matter complained of does not indicate the persons or organisations for whom the plaintiff feels hate, or even that hatred is felt, but submits that the reference to "hate" in the headline gives rise to an imputation of "to Russia with hate" in the same way as Gleeson CJ's poster "X is disgusting" gives rise to an imputation in those terms. Beyond that, Mr Rasmussen submitted, the court should not require any further precision, arguing "the river cannot rise higher than its source".
I do not accept that submission. The imputation, in its present form, fails to reveal to anyone, and not merely the ordinary reasonable reader, what the meaning complained of is; even Mr Rasmussen could not identify it. The imputation in its current form therefore has a tendency to cause embarrassment in the pleadings and should be struck out pursuant to UCPR r 14.28.

Imputations 6(e) and 8(e)

The matter complained of clearly states that the pro-Russian rebels the plaintiff has joined are accused of shooting down MH 17, and that Cossacks have close links to Russian President Putin, as they have become his "unofficial shock troops" (paragraph 7). However, the plaintiff is described as questioning why the investigators were there, as "There was no reason why Russia would shoot down a plane". He states that it was "very disgusting" of the Prime Minister to "jump to conclusions and start accusing Russia". The clear inference is that the plaintiff does not accept that the plane was shot down by the Russian side of the conflict in the Ukraine, not that he condoned the shooting down of the plane by the Russians (or by any other organisation, including the pro-Russian rebels he had joined) on Russia's behalf.
Mr Rasmussen made two alternative submissions as to capacity. The first was that the plaintiff was merely saying that the Russians did not shoot the plane down, and not the pro-Russian rebels he had joined. If so, he could be taken to have condoned what the pro-Russian rebels did while complaining about the Prime Minister jumping to conclusions and accusing Russia. I find this submission convoluted and self-contradictory, and to involve an exercise in leaps of imagination well outside the capacity of the ordinary reasonable reader, even a loose-thinking one, to perform.
Mr Rasmussen's second submission was that, while the contents of paragraph 11 were antidote, the rest of the matter complained of was bane: Corby v Allen & Unwin Pty Ltd at [142]. However, the plaintiff repeatedly states that he has not broken any Australian laws and that he was just there to "help people" (paragraph 12), and others state that his military experience has been "part of his training" in Australia. The picture painted is one of the plaintiff as a naïve and foolish person, not of a person who condones the shooting down of a civilian aircraft. This is not a case of bane and antidote; the clear message is that the plaintiff does not accept what the Prime Minister and others are saying (impliedly correctly) is true.
As is noted below, whether an imputation of this kind arises will depend upon a careful examination of the text of the matter complained of. This is why I have come to a different conclusion about whether this imputation is conveyed by the editorial, which is more loosely worded and which excludes the statements made by the plaintiff set out in paragraph 11.
This imputation is not capable of being conveyed and will be struck out.

Imputations 6(f) and 8(f)

An imputation that a plaintiff is guilty of an act cannot arise at the same time as an imputation that the plaintiff is reasonably suspected of an act. Either one or the other is conveyed, and the correct method of pleading such imputations is for the imputation of suspicion to be pleaded as a "fall-back" imputation. Accordingly imputations 6(f) and 8 (f) will be pleaded as fall-backs to imputations 6(i) and 8(i).

The remaining imputations

Those imputations not the subject of challenge will go to the jury.
A challenge was made to the use of the term "Australian citizen" in these imputations, as well as in the imputations pleaded for other publications. Since these matters complained of describe the plaintiff's conduct as "un-Australian" (paragraph 18), this argument was raised in a somewhat faint fashion. For the same reasons as are set out in the judgment Boikov v Dailymail.com Australia Pty Ltd [2015] NSWDC 192, I reject these submissions. All imputations will go to the jury with the term "Australian citizen" included where those words have been included in the drafting.
This brings me to the challenges to the imputations in the third matter complained of, namely the Editorial.

The third matter complained of - The Editorial, Daily Telegraph

The imputations pleaded to arise from the third matter complained of are as follows (paragraph 10 of the statement of claim): 1. The plaintiff flew to the Ukraine to fight. 2. The plaintiff is under ASIO watch because he flew to the Ukraine in order to join the pro-Russian rebels. 3. The plaintiff condones the shooting down of Malaysian Airlines Flight MH17. 4. The plaintiff's participation in the fighting in the Ukraine is dangerous for Australia. 5. The plaintiff's participation in the fighting in the Ukraine is dangerous for Australia because it inevitably brings those conflicts to our own land. 6. The plaintiff is reasonably suspected by the Editor of the Daily Telegraph of having broken the laws of Australia by travelling to the Ukraine to fight in a foreign war. 7. The plaintiff is reasonably suspected by ASIO of having broken the laws of Australia by travelling to the Ukraine to fight in a foreign war. 8. The plaintiff is a terrorist of the same class as Islamic militants fighting in Syria and Iraq.
The imputations challenged are imputations 10 (c), (f) and (g). I formally note that all other imputations will go to the jury, as will the imputations from the fourth matter complained of, which are not the subject of challenge.

Imputation (c)

The message in this short editorial is written in different terms to those of the first and second matters complained of, and it is important not to conflate the texts of these publications.
The headline and following three paragraphs discuss the "deeply worrying development" of Australians joining foreign militias, including local members of the Russian community "joining the fighting in the Ukraine", "particularly" as "the very group" supported by the plaintiff being "understood to be responsible for shooting down" MH 17. The editorial ends by extending the same plea to the Russian community as the newspaper had previously extended to "our Islamic community".
I agree with the defendant's submissions that the use of the word "condone" requires knowledge of the act. The description in paragraph 4 of the concern arising "particularly because" the very group the plaintiff has joined is understood to be responsible is sufficient, on a capacity basis, to convey an imputation that the plaintiff knew about (and thus condoned) the shooting down, in that he not only joined the group but remains there.
This imputation is capable of being conveyed and will go to the jury.

Imputation (f)

Is it defamatory to say that a person is reasonably suspected by the Editor of the Daily Telegraph of having broken the laws of Australia?
In Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669 at 671, Hutley JA explained the reasons why it was imperative for the holder of the suspicion to be identified as a person with sufficient authority to render the suspicion defamatory: "An accusation from certain quarters may be a compliment, or at least carry no reflection upon the reputation of the accused. The cases in which the defamatory import of accusations have arisen are all where the accusation was by legitimate authorities. Thus, in Lewis v Daily Telegraph Ltd [1964] AC 234, the defamatory meaning was that the plaintiffs were suspected by the police (see at 239). In Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408, the defamatory meaning was alleged to arise out of an actual criminal trial; in Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16, the alleged defamation arose out of a criminal charge; in Mirror Newspapers Ltd v Harrison (1982) 56 ALJR 808; 42 ALR 487, the defamatory material was in the report of a police investigation, arrest and expected charge. It would seem to me that the identification of the persons making the accusation is not a mere matter for particulars; for a report of making an accusation to be capable of defamatory meaning, it must identify the accusation coming from some authority whose status can make it stick without more. A more difficult issue is presented by imputation (h). I would think that it is at least open to a jury to infer that the status of a Royal Commission is such that a report that a person has been accused by it is defamatory, unless justified."
Imputations of suspicion generally refer to suspicions by police or serious investigatory bodies such as the ICAC. An accusation from the Editor of the Daily Telegraph may not necessarily be a compliment, but it would be insufficient to reflect upon the reputation of the plaintiff.
This imputation is incapable of being defamatory and is struck out.

Imputation (g)

The capacity of this imputation is not challenged; what is argued is that it should be pleaded as a fall-back to imputation (a). It is, however, an imputation of conduct very different to (a), in that it refers to being reasonably suspected by ASIO, and is thus capable of arising at the same time as imputation (a),

The fifth matter complained of - The Australian

The imputations pleaded to arise from the fifth matter complained of are as follows (paragraph 14 of the statement of claim): 1. The plaintiff, an Australian citizen, trained with rebels in Donetsk, Ukraine. 2. The plaintiff, an Australian citizen, is waging war in the Ukraine. 3. The plaintiff, an Australian citizen, is one of the mystery rebels keeping the Australian Federal Police from collecting human remains and evidence from the MH17 crash site. 4. The plaintiff, an Australian citizen, is fighting with pro-Russian fighters in the Ukraine. 5. The plaintiff, an Australian citizen, has committed a serious crime by going to fight in the war in the Ukraine. 6. The plaintiff, an Australian citizen, by waging war in the Ukraine is no better than the Jihadists fighting in the Middle East.

The sixth matter complained of - The Australian Website

The imputations pleaded to arise from the sixth matter complained of are as follows (paragraph 16 of the statement of claim): 1. The plaintiff, an Australian citizen, trained with rebels in Donetsk, Ukraine. 2. The plaintiff, an Australian citizen, is waging war in the Ukraine. 3. The plaintiff, an Australian citizen, is one of the mystery rebels keeping the Australian Federal Police from collecting human remains and evidence from the MH17 crash site. 4. The plaintiff, an Australian citizen, is fighting with pro-Russian fighters in the Ukraine. 5. The plaintiff, an Australian citizen, has committed a serious crime by going to fight in the war in the Ukraine. 6. The plaintiff, an Australian citizen, by waging war in the Ukraine is no better than the Jihadists fighting in the Middle East.
The imputations challenged are imputations (b) and (d). I formally note that all other imputations will go to the jury, noting as well as my earlier findings concerning the use of the term "Australian citizen".

Imputations (b) and (d)

The defendant submits that these imputations do not differ in substance and Mr Rasmussen, effectively conceding as much, selected imputation (d). Imputation (b) is accordingly struck out.

Special damages and Costs

The defendant sought particulars of the claim referred to as "special damages".
Mr Rasmussen said that the claim for special damages appeared to have been inserted in error, but submitted that his client should be allowed to leave it in, in case such a claim was made. His client was overseas and difficult to contact.
If no particulars of special damages are provided in accordance with the timetable provided in the orders, the defendant will be entitled to seek to have it struck out.
The defendant enjoyed considerably greater success than the plaintiff in these rulings.

Orders 1. Pursuant to UCPR r 14.28 imputations 6(a) and 8(a) are struck out. 2. Pursuant to UCPR r 14.28, imputation 6(b) and 8(b) are struck out. 3. Pursuant to UCPR r 28.3, imputations 6(e) and 8(e) are not capable of being conveyed and will be struck out. 4. Imputations 6(f) and 8(f) are to be pleaded as fall-back imputations to imputations 6(i) and 8(i). 5. Pursuant to UCPR r 28.3 imputation 10(c) is capable of being conveyed and will go to the jury. 6. Pursuant to UCPR r 28.3 imputation 10(f) is not capable of being defamatory and is struck out. 7. The defendant's objections to imputation 10(g) pursuant to UCPR r 14.30 are dismissed. 8. Pursuant to UCPR r 14.28 imputations 14(b) and 16(b) are struck out. 9. All remaining imputations not challenged will go to the jury. 10. The plaintiff is to pay the defendant's costs of and incidental to the argument today. 11. Amended statement of claim in 7 days. 12. Proceedings stood over for directions to 10 September 2015 at 2 pm, noting that the defendant may join in the application to strike out any claim for special damages unless such claim is particularised.

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 (17 paragraphs)

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Legislation Cited (1)

Cases Cited (9)

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