Haklane & Ors v John Fairfax Publications Pty Ltd [2002] NSWSC 341 | Case summary

JUDGMENT (Identification - "class" - "family" - imputations - capacity - form - difference in substance) 1 The six plaintiffs, by Statement of Claim filed on 15 November 2001, sue the defendant for damages for defamation. 2 The matter complained of is an article published in the "The Sydney Morning Herald" on the 29 June 2001 with the headline "Woman murdered only months after being abducted". The article also contains a photograph of police at the crime scene and a photograph of the deceased, Julie Haklane. The text of the matter contained of is appended to these reasons. 3 The plaintiffs in the Particulars of Identification describe themselves thus: "(i) The First and Second Plaintiffs are the father and mother of the late Julie Haklane; (ii) The Third, Fourth and Fifth Plaintiffs are the brothers and sisters respectively of the late Julie Haklane; (iii) By reason of their relation to the late Julie Haklane, the Plaintiffs are known as members of her family; (iv) The Plaintiffs are well known by friends, family as well as throughout the Sydney Lebanese community as members of the late Julie Haklane's family. (v) The Plaintiffs are known to friends, family and the Sydney Lebanese community as being part of the late Julie Haklane's family; (vi) The Sixth Plaintiff's maiden name is Haklane and she resides at the Haklane family residence". 4 The plaintiffs allege that the matter complained of carries the following defamatory imputations of each of them; "5(a) that the Plaintiff is a criminal; (b) that the Plaintiff is connected to the underworld; (c) that the plaintiff associates with the criminal Bayeh brothers". 5 The Statement of Claim discloses that whilst the whole of the article is relied upon, line 34 is said to be especially significant; "Miss Haklane, whose family is connected to the underworld Bayeh brothers, Louis and Bill, was abducted last January 23 near her home at Guildford". 6 In the end, as I understood the primary submissions for the defendant, the relief sought was that the Statement of Claim be struck out as disclosing no reasonable cause of action: SCR Pt 15 r 26 (1)(a). 7 The primary submission is that the reference in the matter complained of, set out above, to the plaintiff's "family" amounts to a class of such an indeterminate nature that on no reasonable basis could it be found that the publication, in the mind of an ordinary reasonable reader, was such that any one member of that class being a plaintiff in this case was pointed at. This is an instance of an indeterminate or very broad "class" to the point that no member of it, who was not otherwise individually pointed to in the matter, would be understood as being referred to: Knupffer v London Express Newspaper Ltd [1944] AC 116. 8 In McCormick v John Fairfax and Sons Ltd and Anor (1989) 16 NSWLR 485 at 487G, Hunt J said: " A libel upon the whole of a class may be the subject of complaint by a member of that class who is not otherwise individually pointed to in what was published only if the matter complained of can fairly be read as defaming each member of that class. In determining whether the matter is capable of such an interpretation, the size of the class, the generality of the charge and the extravagance of the accusation may all be considered, although none is conclusive". 9 Thus, the alternative submission for the defendant is that even if it is thought that, as a matter of capacity, the matter complained of could convey to the reader acquainted with the plaintiffs that "some" of them were criminals, which is said to be the highest meaning which could reasonably be conveyed, the matter complained of does not point to any one or other of the plaintiffs as being the person concerned and thus it is not actionable by any of them, reliance being placed upon McCormick. 10 In McCormick the issue was whether the plaintiff could sue as a member of a class of 3 in relation to the allegation that only one of that class was responsible for perverting the course of justice, the matter complained of denying on its face that each member of that class was guilty of that conduct and there being nothing in the matter complained of itself pointing to the plaintiff as the one who was guilty of that stated conduct (see Hunt J at 488D). In that context having reviewed the authorities his Honour came to the conclusion from which comfort is sought to be drawn by the defendant here that as the matter complained of in that action could not by its express wording be interpreted as asserting that each member of the class was guilty of the conduct, and as there was nothing in the matter which points to the plaintiff as the one alleged to have been guilty of that conduct, it was incapable of conveying the imputation that it was the plaintiff who was guilty of that conduct (at 491C-D). 11 The plaintiff's response to the position taken by the defendant is first that there is a question of identification and there will be disputed matters of fact which will preclude what might otherwise be a Pt 31 r 2 hearing by me and that the matter should be left to the jury. More particularly, and in my view correctly, what the plaintiffs say is that the ordinary reasonable reader will understand the matter complained of to be referring to the immediate members of the deceased's family. There is no suggestion that the relevant class, namely the deceased's family, is composed of too many people for the allegation made to be referrable to each of the plaintiffs as a member of that class. This is a case where it would be available to the jury to come to the view vis-à-vis each plaintiff that the relevant class (the "family") is composed of only a small number of members and thus the libel of that small number is a libel of each member. The circumstances of this publication are clearly distinguishable from that with which his Honour was concerned in McCormick. Upon the identification as a matter of fact by the jury of the group of whom the matter complained of was published, each member of that group it would be argued was defamed. 12 In this as in most areas of the law of defamation the question is one of reasonableness. The suggestion for the defendant that the ordinary reasonable reader would not understand whether the "family" was to be taken to refer to grandmothers and babies is in itself a proposition which is unreasonable. The ordinary reasonable reader could, in my view, conclude that the reference to the "family" of the deceased is a reference to her parents and siblings and that would be a reasonable construction. Each individual member of that class would thereby, if the matter complained of carries a defamatory imputation, be the victim of its publication. It is not a question of any one being pointed to. The issue is that each is pointed to. 13 Accordingly I decline to strike out the statement of claim on either of the bases asserted by the defendant. 14 Objection is next taken on a capacity basis to the first pleaded imputation that "the plaintiff is a criminal". I reject the defendant's submission that a reasonable reader would be capable of concluding no more than that there was "some connection" between the "family" of the deceased and the two Bayeh brothers. The reasonable reader, it was argued, acquainted with the plaintiff would not be capable of understanding the matter to mean that each of them, or the particular plaintiff, was "a criminal"; that, it was contended, would be a strained and forced reading of the matter complained of. 15 Applying the test of reasonableness (Amalgamated Television Services Pty Ltd v Marsden (1998) 45 NSWLR 158) the conclusion in my view with facility can be reached that the ordinary reasonable reader from that one line at least could understand the matter complained of as conveying of the plaintiff the meaning asserted. In this context there is no reasonable issue that the word "connected" means something more than by blood. 16 Accordingly I hold that the matter complained of is capable of carrying, as a matter of law, imputation (a). 17 Objection was taken to the form of imputation (b) insofar as, it was argued, that the plaintiff has not captured "a precise act or condition". I reject this contention. This is a "classic" instance where conformably with the principles in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137A - 138F, the plaintiff can do no better than the language offered to it by the defendant. Whilst I do not accept that my decision of 10 June 1994 in Bazdaric and Ors v TCN Channel 9 Pty Ltd covers the point (in my view it is clearly distinguishable), this is a case where the defendant can hardly complain of an imputation pleaded from the precise words that the defendant itself used. 18 Insofar as in it's written submission the defendant contends that there is a question as to the difference in substance between imputations (a) and (b), (a submission even in writing made in passing as it were) I am satisfied that there is a distinction between being but a criminal and being connected to the underworld. 19 I add that the defendant, almost as a matter of necessity in reasoning, argued that the matter complained of by reason of the "class libel" considerations to which I have referred, was incapable of carrying any of the imputations. Insofar as that argument extends to (b) I hold that it is capable of being carried by the matter sued upon. 20 Imputation (c): the plaintiffs chose to plead this imputation at their peril in my view. Unlike imputation (b) it cannot be anchored to the language of the matter complained of and it is on its face quite vague and uncertain by the use of the word "associates". The plaintiffs have the benefit of the defendant's language and their use of it as I have held in relation to imputation (b). Whilst the defendant did not specifically or expressly raise the difference in substance point between (b) and (c) it arose during the course of submissions. I simply am unable to understand any difference between (b) and (c) in terms as sought to be advanced of a general and particular basis, notwithstanding the lack of clarity in imputation (c). 21 I strike out imputation (c). 22 Save for the "class libel" aspect one could form the view that this is a remarkably simple case. As was argued and will no doubt be argued to the jury, lines 34-35 could be seen as a gratuitous inclusion in the matter complained of and could be understood by the ordinary reasonable reader as giving an explanation (and in a disparaging way) of all the extraordinary and tragic things that happen to this pretty young lady in ordinary employment who had been abducted and then at a later date murdered. 23 The formal orders are:

Imputations (a) and (b) are capable of being carried by the matter complained of, are capable being defamatory and differ in substance.
Imputation (c) is struck out.
Within 14 days of today the plaintiff is to provide the particulars of the identity of the persons to whom the Particulars of Identification were known.
Within 21 days of today the defendant is to file a defence limited to those issues for the determination by the jury pursuant to s 7A of the Defamation Act, 1974.
Upon the expiry of 21 days from today the matter is to be placed in the list for call up for the s 7A jury trial.
Pursuant to Pr 31 r 2 I order that there be tried separately those issues of fact as joined between the plaintiff and the defendant for the determination of the jury pursuant to s 7A of the Defamation Act, 1974.
The plaintiff no later than 14 days before the date allocated for the hearing of the s 7A jury trial, is to provide the defendant with outlines of evidence of those witnesses to be called in support of their case on the issue of publication and identification.
No later than 14 days prior to the date fixed for the s 7A jury trial, the defendant is to notify the plaintiff in writing whether or not it places in issue, subject to its defences in the pleading referred to, the fact that it published the matter complained of in the Sydney Morning Herald as alleged.
The defendant is to pay the plaintiff's costs.

1 "Woman murdered only nine months after being abducted"; The Sydney Morning Herald 29 June 2001 2 3 Les Kennedy and Nick O'Malley 4 5 A young woman abducted and held at gunpoint for several hours in January has been found 6 bashed to death in her car after her second abduction. 7 8 Miss Julie Haklane, a 24 year-old sales representative, had been missing since Monday afternoon 9 after phoning her parents, with whom she lived, saying she was on her way home from work. 10 11 The trip from her office at Seven Hills to Guildford, at 5pm should have taken only her 40 12 minutes in the peak-hour traffic. 13 14 But by early evening, when she failed to arrive, her parents contacted Merrylands detectives. 15 16 Later that night police set up a kidnapping enquiry, but by Wednesday, an appeal for help in 17 locating Miss Haklane, did not reveal publicly the true extent of their investigation. 18 19 A press release issued through the Police Media section said police were concerned for her 20 "welfare" and that Miss Haklane "is an insulin-dependent diabetic and not thought to have had 21 her medication since Monday". 22 23 At 8.15 am yesterday, on Eton Street, Smithfield, a man discovered her body in the front 24 passenger seat of her white Honda Integra sedan, parked near the intersection of Granville 25 Street. 26 27 Her killer had covered her body with a sheet or blanket, 28 29 Although residents reported gunshots around midnight on Wednesday, police said a number of 30 people had noticed the car at the scene early that day. 31 32 A post-mortem examination was underway last night to establish the cause and time of death. 33 34 Miss Haklane, whose family is connected to the underworld Bayeh brothers, Louis and Bill, was 35 abducted last January 23, near her home at Guildford. 36 37 It is alleged that for some hours, a man threatened her with a gun before she was released. 38 39 charges against the man, who was granted bail in January and was interviewed on Tuesday, are 40 expected to be heard in Parramatta Local Court in July. 41 Police have also quizzed a male friend of Miss Haklane. 42 43 Yesterday, detectives also appealed for anyone who saw Miss Haklane or her vehicle to contact 44 Fairfield detectives, who have been joined in their investigations by Homicide Squad officers. 45 46 More than 30 police were at the scene yesterday, including members of the Target Action Group. 47 48 [Photograph] 49 50 Caption: Police at the crime scene at Eton Street, Smithfield. Photograph: Helen Nesdropa 51 52 [Photograph of Julie Haklane] 53 54 Caption: Julie Haklane. Photograph: Channel 10

Haklane & Ors v John Fairfax Publications Pty Ltd

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