Ibrahim v Fairfax Media Publications Pty Ltd

ex tempore Judgment 1This is an application by the defendant to strike out various imputations in the plaintiff's statement of claim pursuant to Uniform Civil Procedure Rule 14.28. 2The statement of claim concerns two publications in respect of the plaintiff, Bashar Ibrahim. One of the publications was in a newspaper article in the Sun Herald newspaper published on or about 12 May 2013. The other publication was on a website on the same date. 3The statement of claim pleads five imputations as having been conveyed by each of those two publications. The five imputations are in identical form. The argument proceeded by reference to the imputations pleaded in respect of the newspaper article. Both parties accepted that the outcome of the argument in respect of the newspaper article governed the outcome of the application in respect of the imputations said to arise out of the website article. 4At the outset it is necessary to briefly note the topic and content of the article. The article is headed, "Ibrahim puts Vaucluse mansion on market". It includes a photograph of the plaintiff with the words, "Hard times: Bashar Ibrahim's $4 million house is for sale". 5The opening paragraph of the article records that business is said to be "bad for former Telopea Street boy Bashar Ibrahim, who is selling his $4 million Vaucluse home". 6Senior Counsel for the plaintiff, Mr Smark SC, noted accurately that the article is curious in that it seems to commence its life as an article about real estate, but then ends as a survey of the alleged state of the Sydney criminal underworld. The tone and effect of the article is perhaps best illustrated by the interesting juxtaposition that occurs in the second paragraph of the article which read as follows: "Mr Ibrahim, who once shot a crime family member in the leg and has himself been shot, has listed his five bedroom, three storey, clifftop eastern suburbs mansion for auction on May 21." Thus there is a juxtaposition of two shootings with a real estate listing. 7The flavour of the article continues in this vein. It covers persons in the criminal underworld whom Mr Ibrahim is said to know and be associated with. The article refers to two apparent legitimate businesses that Mr Ibrahim operates, namely a property development company and a money lending service. Consistent with the statement in the opening paragraph, it from time to time comments upon his apparent personal financial difficulties, but then proceeds to discuss his alleged associations with persons in the underworld. It will be necessary to return to particular parts of the article shortly. 8Mr Smark SC referred me to the principles appropriate on an application of this kind as conveniently set out in Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254. One aspect of the application involves a contention that some of the imputations are not capable of arising from the articles. Mr Smark SC correctly reminded me of not only the high test presented by such a test on a strike out application but also the well known principles that in reading the article one must have regard to its sensationalist nature. Further, I must bear in mind the fact that the reader would not be inclined to read it as closely as a lawyer or judge might, and that the reader is understandably prone to engage in what is sometimes described as a "certain amount of loose thinking" (see Malcolm at [14] citing Griffiths v John Fairfax Publications Pty Ltd [2004] NSWCA 300 at [19(g)]). 9An application to strike out on the basis that the relevant imputation, even if conveyed, is not capable of being defamatory also faces a high test. In effect I need to be persuaded that it is not open to a jury to conclude that the imputation, if conveyed, is likely to cause ordinary persons in the community in general to think less of the plaintiff. 10The first imputation to which objection was taken was imputation (a), namely "[t]he plaintiff was in such financial trouble that he had been forced to put his home on the market". Counsel for the defendant, Ms Barnett, contended that this imputation even if conveyed was not capable of being defamatory. Mr Smark SC did not seek to support this imputation but instead sought leave to replead it. In the end his application to replead was not seriously opposed. Accordingly I will strike out imputation (a) in paragraphs 5 and 7 of the statement of claim and grant the plaintiff leave to file an amended statement of claim. 11The second imputation about which complaint was made was imputation (c) which pleads "the plaintiff was planning to leave Australia to avoid his financial responsibilities". Ms Barnett contended that this imputation was not capable of being conveyed by the article. It was clear from her submissions that Ms Barnett was construing the phrase "financial responsibilities" as, in effect, a reference to bona fide debts. The article refers to a source telling the author that Mr Ibrahim was "planning to leave Australia amid growing tensions surrounding his business empire". The article then set out a quote apparently from the source as follows "Bashar's been getting a lot of heat, even from jail [sic] inmates wanting help but he's telling them he's got no money", the source said. "But he did have $800,000 to lose at Melbourne Crown Casino earlier this year." Thus Ms Barnett contended that, to the extent that the article was capable of conveying anything about why Mr Ibrahim might be planning to leave Australia, it was not to "avoid his financial responsibilities" as she understood that phrase but apparently in response to the "heat" referred to in this extract which appears to be a reference to inmates and presumably other persons in the underworld pressing him for money. 12When Mr Smark SC came to address this imputation, it was clear that the plaintiff was asserting that the phrase "financial responsibilities" extended more broadly and was meant to encompass what might be thought to be "honour" obligations between members of a criminal gang or the criminal milieu. At first blush that does not strike me as what is embraced by "financial responsibilities". Ms Barnett submitted in reply that, if that is what is meant or was included in what is meant by "financial responsibilities", it presents a real difficulty as to whether it was defamatory. In the end Mr Smark SC conceded that the appropriate course was to strike out imputation (c) but to grant his client leave to replead. That is the course that I will take. 13Imputation (d) was also challenged. It alleges the "plaintiff was the head of a criminal gang". It must be read in the context that imputation (b) pleads that "the plaintiff was a member of the criminal underworld". Imputation (b) is not challenged. Ms Barnett challenged so much of imputation (d) that referred to the plaintiff being the "head" of a criminal gang. She further submitted that, if that aspect of imputation (d) was not capable of being conveyed by the relevant publication, then what would be left would be no different to imputation (b). Mr Smark SC accepted the latter step in her argument but disputed the contention that the imputation that the plaintiff was the "head" of a criminal gang was not capable of being conveyed by the article. 14To address this it is necessary to refer to the article in some more detail. I have already noted how it refers to various associations that the plaintiff is said to have with criminal identities. Thus one paragraph reads: "Mr Ibrahim lives 500 metres from the Dover Heights mansion of Kings Cross nightclub identity John Ibrahim - who Bashar has previously denied is a relative. But there is no doubt they run in the same circles." 15I have already set out an extract in which the source for the article referred to Mr Ibrahim planning to leave Australia. That quote, including the reference to the amount lost at the Melbourne Crown Casino, is immediately followed by the following statement "[a]ll his crew are in-fighting and Bashar's telling me he's got no money, he said", the reference to "he" being to the source. 16Ms Barnett submitted that the only words that came close to being capable of conveying that Mr Ibrahim was the head of a criminal gang was the reference to "his crew" in the above, but when read in context it was clearly a reference to a "crew" of which Mr Ibrahim was a member but not the leader. Ms Barnett's argument may ultimately be correct, but I am not persuaded to the requisite standard for a strike out that the article is not capable of conveying that he is the "head of a criminal gang". 17One fallacy to be avoided in reading this article for the purposes of a strike out is to treat the article as only talking about one single well structured criminal group. The relevant imputation is only that Mr Ibrahim is "the head" of "a criminal gang". One reading that I consider would be open to a jury is that the reference to "his crew" is a reference to a criminal gang of which he is the head, but that the criminal gang is not the entirety of the underworld being referred to in the article. Read in that way the reference to the persons who are applying "heat" to Mr Ibrahim may or may not be a reference to the members of that "his crew". Further the fact that the crew are infighting and that Mr Ibrahim is telling people he has no money is not necessarily inconsistent with him being the head of that crew. It simply may mean that his position as head and his power and influence over them are waning as his financial resources run down. I decline to strike out imputation (d). 18Imputation (e) is that "[t]he plaintiff was in financial trouble because he lost $800,000 gambling at Crown Casino". I have already set out the passage from the article that refers to Mr Ibrahim having lost $800,000. Ms Barnett contends that the article is not capable of conveying this imputation, and that, even if it did, it was not capable of defaming Mr Ibrahim. In relation to the former contention, she submits that the passage which refers to Mr Ibrahim losing $800,000 conveys that he is lacking in credibility when telling inmates seeking help that he has no money. This may be accepted for present purposes, but the article in its totality still needs to be considered. As I stated, the opening paragraph of the article refers to Mr Ibrahim selling his $4 million home. The only indications of his level of wealth that are given in the article is that figure of $4 million and the figure of $800,000. There is also a reference to an amount of almost $300,000 that had been won by another alleged criminal associate in a poker competition. At least on one reading of the article the amount that he is said to have lost at the casino, namely $800,000, appears to be very material to his overall financial position. Certainly that amount would be material to most people's financial position. 19On what is known by the article, it seems to me that it would be reasonably open to a jury to conclude that a person who owns a $4 million home in Vaucluse and who lost $800,000 at a casino in a relatively short period of time would be in financial trouble because of that fact. Accordingly, I reject Ms Barnett's first contention in relation to imputation (e). 20Further, I consider that imputation (e) is also capable of being defamatory of the plaintiff. In particular I think it would be open to a jury to conclude that ordinary persons in the community taken in general would think less of a person who found themselves in financial trouble because they lost $800,000 gambling at a casino. They might consider such a person to have acted in an at least a grossly reckless fashion. Whether, of course, this imputation if conveyed and if not capable of being defended would be of much significance if any of the other imputations are in fact found and not capable of being defended is not a matter for me at this point. I reject Ms Barnett's second contention in relation to imputation (e). 21Accordingly, the Court orders that (1)The imputations in sub-paragraphs 5(a), 5(c), 7(a) and 7(c) of the Statement of Claim be struck out. (2)The plaintiff be granted leave to file and serve an Amended Statement of Claim on or before 10 February 2014. (3)The proceedings are stood over for directions to the Registrar's list at 9:00am on 24 February 2014. (4)The costs of this application be costs in the cause.