Kazi Zafar Ahmed v John Fairfax Publications Pty Limited [2006] NSWCA 6 | Case summary

Kazi Zafar Ahmed v John Fairfax Publications Pty Limited [2006] NSWCA 6 | Case summary | Zoe

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Friday, 3 February 2006 Kazi Zafar AHMED v JOHN FAIRFAX PUBLICATIONS PTY LTD Judgment 1 SANTOW JA: I agree with McColl JA. 2 McCOLL JA: The claimant, Kazi Zafar Ahmed, seeks leave to appeal from a decision of Nicholas J striking out imputations upon which he sought to rely in proceedings he brought against the opponent, John Fairfax Publications Pty Ltd, to recover damages for defamation in respect of two issues of the Sydney Morning Herald: Friday, 13 June 2003 ("the first matter complained of") and 14 - 15 June 2003, the Weekend Edition ("the second matter complained of"). He also seeks leave to appeal from a decision of Nicholas J on 22 November 2004 striking out particulars of aggravated damages. 3 The first matter complained of was published at the top of the front page of the Sydney Morning Herald and across its width. It was headlined "Australia welcomes corrupt Bangladeshi PM who stole his people's food". It appears as Schedule A to this judgment. 4 The second matter complained of appeared in the Weekend Edition. It comprised four articles. The first, which appeared on the front page, was a small item headed "PM a political victim". It quoted the Immigration Minister, Mr Phillip Ruddock, as having "defended his department's decision to grant asylum to Bangladesh's former prime minister, Kazi Zafar Ahmed, despite his conviction on corruption charges …". This item referred the reader to page 9. On page 9 the second article appeared, headed "Visa scandals: Ruddock may freeze out advocates". The main text of the second article dealt with Mr Ruddock's consideration of an overhaul of the visa system "to combat claims that he is being improperly pressured to intervene in rejected cases". There was a break out item in the second article, in slightly bolder text, headed "My life was in danger: former PM denies corruption charges". At the end of the second article, the reader was directed to "Friends in High Places - page 25", the third article. It appeared first on page 25 of the News Review section of the weekend edition and continued on page 34. The fourth article, headed "The Dirt on Dante" appeared on page 34 beside the concluding portion of "Friends in High Places" article. The second matter complained of appears as Schedule B to this judgment. 5 After the Statement of Claim was filed the opponent served a Notice pursuant to Pt 67 r 12A of the Supreme Court Rules 1970 which relevantly, complained that eight of the imputations pleaded in respect of the first matter complained of (3(b), 3(d) 3(e), 3(g), 3(h), 3(i), 3(j) and 3(m)) were not conveyed and that, insofar as the second matter complained of was concerned, the first imputation 5(a) was not reasonably capable of bearing a meaning defamatory of the claimant and that imputations (5(d), 5(e), 5(f) and 5(g)) were not conveyed. The claimant filed a response joining issue with the opponent's objections to the imputations. 6 The question whether the matters complained of were reasonably capable of carrying the imputations pleaded by the claimant was first determined on 12 July 2004 at a separate hearing pursuant to Pt 31 r 2 of the Supreme Court Rules 1970. On that occasion Nicholas J held that imputations 3(b), (d), (e), (g), (h), (i), (j) and (m) and 5(e), (f) and (g) were incapable of arising from the first or second matter claimed of respectively. He ordered that they be struck out, but granted liberty to replead. This accorded with the practice in the Defamation List: see Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [88] per Hunt AJA. He struck imputation 5(a) out as defective in form. It appears that on that occasion the parties informed his Honour that they did not require reasons for his decision. 7 On 12 August 2004, however, the claimant filed an amended Statement of Claim which included all the original imputations. On a date which does not appear in the papers, Mr R A Campbell, counsel for the claimant, informed Nicholas J that the claimant had instituted an appeal from the orders striking out the imputations and sought reasons for those orders. 8 The matter was re-listed before his Honour on 22 September 2004 when counsel for the parties "reminded him" of the submissions made on 12 July in respect of the rejected imputations in order "to facilitate the preparation of the reasons for [his] decision". Nicholas J published his reasons on 1 October 2004. 9 He said that after further reflection he had concluded that imputation 3(j) was capable of being conveyed and that his earlier ruling to the contrary was wrong. He set aside the order he had made on 12 July 2004 that imputation 3(j) be struck out, held that imputation was capable of arising from the first matter complained of and of being defamatory of the claimant and, accordingly, should go to the jury. He confirmed the orders that each of imputations 3(b), (d), (e), (g), (h), (i) and (m) and imputations 5(a), (e), (f) and (g) of the amended Statement of Claim be struck out.

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Nicholas J struck out the underlined imputations. Legal principles 12 Although the claimant's written submissions asserted that the application for leave to appeal may raise a question as to the test to be applied to determine whether a matter complained of is reasonably capable of carrying the imputation pleaded (s 7A(1), Defamation Act 1974), Mr Campbell accepted in oral argument that no novel question of principle arose. He did not gainsay the opponent's submission that the relevant principles were authoritatively stated by Hunt CJ at CL (with whom Mason P and Handley JA agreed) in Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164-167 as recently summarised and confirmed by Tobias JA (with whom Sheller JA and Young CJ in Eq agreed) in Griffith v John Fairfax Publications [2004] NSWCA 300 at [19] - [20] as follows: "19 The principles applicable to the correct approach of the primary judge and this Court to the issue posed by s 7A(1) … may be summarised as follows: (a) Section 7A(1) of the Act is declaratory of the common law, namely, that the issue of the capacity of the matter complained of in a defamation action was properly described as the task of deciding whether it would be open to the jury in the particular case to find that ordinary reasonable readers would have understood the matter complained of, when read as a whole, in the defamatory sense pleaded. (b) On any appeal, this Court is required to independently come to the conclusion as to whether there is a case to go to the jury. (c) If reasonable persons may differ as to whether the matter complained of was capable of carrying the imputation pleaded, then the issue must be left to the jury; otherwise, it is a matter for the court. (d) The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it; in deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable; accordingly, any strained or forced or utterly unreasonable interpretation must be rejected. (e) The ordinary reasonable reader is a person of fair average intelligence who is neither perverse, morbid, suspicious of mind nor avid for scandal. However, that person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs. (f) The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected by the reader. (g) The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking. (h) There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual. (i) There is a distinction to be drawn in the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded. The distinction is between what the ordinary reasonable reader (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader could reach by taking into account his or her own belief which has been excited by what was said: it is the former approach, not the latter, which must be adopted.

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20 Although in dissent as to the result, the foregoing principles were re-stated by McHugh J in John Fairfax Publications Pty Limited v Rivkin (2003) 77 ALJR 1657 where his Honour observed (at 1161 [26]) (omitting citations): 'However, although a reasonable reader may engage in some loose thinking, he or she is not a person 'avid for scandal'. A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If '[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together'. But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article.' See also Callinan J, with whom Gleeson CJ agreed, at 1699 [181]." 13 These principles, many of which are drawn from Jones v Skelton [1963] SR (NSW) 644 and Lewis v Daily Telegraph Ltd [1964] AC 234, were revisited in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 by Gleeson CJ, McHugh, Gummow and Heydon JJ who said, relevantly (footnotes omitted): "[10] In determining what reasonable persons could understand the words complained of to mean, the Court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd : 'The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.' [11] Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd , that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges … [17] … Ultimately, the question is what a jury could properly make of it. In Lewis v Daily Telegraph Ltd , Lord Reid said: 'Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.' " 14 The joint judgment also re-iterated (at [17]) that each imputation relied upon has to be considered in the context of the entire article: see also John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at [26] per McHugh J; Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at [26] per Mason P (with whom Wood CJ at CL agreed); Saunders v Nationwide News Pty Ltd [2005] NSWCA 404 per Hunt AJA (with whom Ipp and Tobias JJA agreed). 15 Kirby J agreed generally (at [19]) with Gleeson CJ, McHugh, Gummow and Heydon JJ's reasons. His Honour discouraged (at [20] - [22]) "an approach of excessive refinement" to the question whether pleaded imputations were capable of being conveyed, reminding courts asked to deal with such issues of the "large capacity of [the tribunal established by law (whether a jury or a judge) to decide claims in defamation] to deal with far-fetched and remote imputations in a commonsense way". His Honour also called (at [24]) for courts to drop "the fiction of the 'ordinary reasonable reader' ", but accepted (at [26]) that because the parties to the appeal had presented their arguments by reference to "the conventional formulation, this [was] not the occasion to explore a different approach." This Court is constrained by the joint judgment to test the issues by reference to the ordinary reasonable reader. 16 The opponent's arguments, particularly in relation to the second matter complained of, relied upon the fact that it reported the claimant's denials that he had engaged in corrupt conduct and was a "political victim". Notwithstanding that fact, it must be borne in mind that the reader is entitled to give some parts of the matter complained of more weight than others (John Fairfax Publications Pty Limited v Rivkin at [50]) and if "[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together." Chalmers v Payne (1835) 2 Cr M & R 156 at 159; 150 ER 67 at 68 see also Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 at 682, 683-4; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 671. 17 Finally I note that the exercise the primary judge was required to undertake in determining whether the claimant's imputations should be struck out was to be approached with "great caution". In particular, if reasonable minds might possibly differ about whether or not the material was capable of a defamatory meaning that would be "a strong, perhaps an insuperable, reason for not exercising the discretion to strike out": Favell v Queensland Newspapers Pty Ltd (at [6]) approving McPherson JA's statement to that effect in Favell & Anor v Queensland Newspapers Pty Ltd [2004] QCA 135 at [2]. The first matter complained 18 The imputations the primary judge struck out deal principally with the claimant's actions in Australia, albeit in some cases set against the background of his actions in Bangladesh. Imputations 3 (g), (h) and (i) deal with him obtaining refugee status. Imputations 3 (d), (e) and (m) deal with him procuring a disability pension. On the other hand his Honour permitted the imputations concerning the claimant's conduct in Bangladesh to go to the jury with the exception of 3(b), which the claimant does not seek to sustain. It is apparent that his Honour regarded the first matter complained of as sufficiently segregating the claimant's activities in Bangladesh from his activities in Australia so that the former did not, in any way, cast a pall over the latter. 19 With respect to his Honour, I cannot agree. The theme of the first matter complained of is that the claimant is corrupt, a convicted thief who fled Bangladesh to avoid the consequences of his actions. The headlines on both pages 1 and 4 identify him as a "corrupt Bangladeshi PM". The headline on page 1 also identifies him as a person who had stolen "his people's food". That on page 2 asserts that he has found "safe haven". 20 Details of his corrupt and dishonest conduct in Bangladesh are spelt out interspersed with references to his activities in Australia, critically, obtaining a refugee visa and a disability pension. There is no express or implied reference to any part of his history which would support the proposition that he had "a well-founded fear of persecution for [refugee] convention related reasons" (para [6]) so as to justify him being granted a refugee visa. While the article accepts that he is suffering from the kidney condition which led to his disability pension, it points out that he is only able to get the pension because he has a refugee visa. Thus if his acquisition of the visa is tainted by dishonesty, so, too, is his acquisition of the disability pension. 21 The absence of express reference to corrupt or dishonest conduct in relation to the visa or pension does not mean the reasonable reader could not understand the first matter complained of in that sense. Such a person could, reading between the lines, conclude that a person with the corrupt and dishonest characteristics ascribed to the claimant in respect of his activities in Bangladesh would not shrink from continuing such behaviour in Australia, particularly when he had a motive to seek permanent status here: avoiding sentence in Bangladesh 22 Although, as a matter of strict analysis, it might be possible to pare away the portions of the article which describe the claimant's receipt of the refugee visa and the disability pension from those parts which assert he is corrupt, and guilty of theft, in my view the ordinary reasonable reader of such an article would be prone to engage in loose thinking: Griffith v John Fairfax Publications at [19] [g]. In this respect it is relevant that the article was of a sensational nature, both in presentation and terms and thus less likely to have been read by the ordinary reasonable reader with a fine eye to meticulous analysis: see Griffith v John Fairfax Publications at [19] (f). 23 Mr R Lancaster, who appeared for the opponent, submitted the ordinary reasonable reader would understand the first matter complained of as a criticism of the Australian government for letting in a corrupt person. That submission is ingenuous and I reject it. 24 It is convenient to deal with the primary judge's reasons, the parties' submissions and my conclusion in relation to each imputation. Imputation 3(d): the plaintiff dishonestly obtained an Australian disability support pension

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The primary judge's reasons 25 In relation to imputation 3(d) the primary judge noted (at [10]) that the thrust of the claimant's submission in support of this imputation was that: "…[t]he article labels the plaintiff as corrupt, dishonest, and a thief whose application for refugee status was a sham. It was put that the reader would be led to assume that he had obtained a disability pension dishonestly just as he had gained refugee status, such assumption being reinforced by the statement on page 4 that 'Centrelink investigated all allegations of people drawing entitlements outside the law'. " 26 His Honour then observed that the article explained that in 2002 the claimant had been taken to Dhaka Hospital with a kidney complaint and soon after returned to Australia and was receiving a disability pension because of his kidney condition. He quoted paragraph [15] of the first matter complained of, then noted that "the opening passages of the article refer to the grant of refugee status by the Immigration Department in 1999 and to the fact that a criminal record would be taken into account in assessing a refugee application although it did not automatically exclude the grant of a refugee visa". 27 His Honour rejected the claimant's submission that imputation 3(d) was capable of being conveyed. He said: "13 … A reader with the attributes described in Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 165 who has read the article as a whole would find no basis for concluding that the disability pension had been dishonestly obtained. The circumstances in which it was allowed are clearly explained and the statements about his corrupt activities as Prime Minister and as to the grant of refugee status do not qualify that explanation. In my opinion an understanding of the matter complained of in the sense of this imputation would be a product of the reader's own beliefs and prejudices rather than of what is expressed and implied in the words of it. ( Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 at 301). I therefore find that the article is incapable of carrying this imputation."

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Imputation 3(d): submissions on appeal 28 Mr Campbell argued that imputation 3(d) was conveyed in two ways. First, he submitted the allegations of the claimant's fraud, stealing and corruption were sandwiched between the references to his pension thus inviting the reader to form the conclusion that all were linked. As I understand this submission, it amounted to the proposition that the first matter complained of painted the claimant as such a dishonest person prepared to go to extreme lengths to enrich himself in Bangladesh that the ordinary reasonable reader would infer that any benefit he gained in Australia was derived through the same means. Mr Campbell's second argument was that the ordinary reasonable reader would infer from the first matter complained of that the claimant was only entitled to the pension because he had obtained a protection visa and that had been obtained on false pretences, otherwise, he would not have been entitled to draw a pension until he had been in Australia for 10 years. 29 Mr Lancaster submitted that the ordinary reasonable reader would understand that the claimant obtained his disability pension because of his kidney condition: that once his visa had been granted it was, given the claimant's health condition, a proper response of the Australian government to offer, and proper conduct on his part to accept, the disability pension. He argued that the ordinary reasonable reader would not take the route propounded by the claimant's second argument, which he described as a two-stage process. It was not clear whether Mr Lancaster was submitting that Mr Campbell's second argument was too convoluted to be attributed to an ordinary reasonable reader or was proscribed because it amounted to an impermissible inference on an inference: see John Fairfax Publications Pty Limited v Rivkin at [54] per McHugh J citing with approval, TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 at 687 - 688; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 167. Consideration 30 In my view the first matter complained of, when considered as a whole, is capable of carrying imputation 3(d). 31 As I have said, the theme of the first matter complained of is that the claimant is corrupt and dishonest. He is said to have fled Bangladesh before his sentence for convictions on charges relating to dishonest conduct (theft) was handed down. He arrived in Australia, according to the first matter complained of, as a person convicted of crimes of dishonesty. 32 There are three references to his disability pension. The first appears on page 1 immediately to the left of the headline under a photograph identifying the claimant as "living in Sydney on a disability pension". Immediately after paragraph [2] (which bundles many of the claimant's alleged vices: corrupt, convicted of stealing food from his flood-ravaged people and selling it) the claimant is, again, identified in the terms which appeared under the caption to the photograph. That reference appears in the same paragraph ([3]) as one which refers to his identity in Bangladesh as "Sugar Zafar" because of his alleged role in hijacking a multi-million dollar aid shipment of sugar and the assertion that he had been sentenced to fifteen years jail in absentia on corruption charges by a Dhaka Court in November 1999. Paragraphs [4] - [6] deal with the claimant being granted a refugee visa. Paragraphs [13] - [16] on page 4 refer to the claimant's kidney condition, explain that the opponent "understands" that he receives the disability pension because of that condition but contrasts the time new immigrants have to wait to receive disability payments (10 years) with the immediate entitlement of a permanent refugee granted a visa. Finally paragraph [17] refers to Centrelink investigating "all allegations of people drawing entitlements outside the law." 33 These references are intertwined with those parts of the first matter complained of which cast doubt on the circumstances in which the claimant obtained his refugee visa, the grant of which depends upon having a "well-founded fear of persecution". Nothing in the article provides any support for the proposition the claimant could have held such a fear. In addition, the references to his return trips to Bangladesh could cause a reasonable reader to have serious doubts about whether he could have satisfied the conditions necessary to secure a protection visa. It would be open to a reasonable reader to understand the first matter complained of to be asserting that the claimant had obtained his visa and any derivative benefits such as the disability pension dishonestly. 34 This is particularly so where the contrast drawn between the position of new migrants and permanent refugees in terms of obtaining disability payments insinuates that the claimant had a motive to misrepresent his entitlement to residency in Australia in order to procure an immediate financial benefit. Equally the rather obscure reference to "people drawing entitlements outside the law" (para [17]) could invite the reasonable reader engaging in loose-thinking to conclude the opponent was saying the claimant was not entitled to the disability pension. It would be open to such a person, reading between the lines, to conclude that the claimant's asserted dishonesty had tainted his obtaining a disability pension. 35 This conclusion does not depend upon an inference being drawn from an inference. Rather, the reasonable reader could understand the first matter complained of to be implying that the claimant acquired his refugee status dishonestly and to infer, from that that the disability pension was also obtained dishonestly. It is permissible for a reader to draw an inference from an implication: see Amalgamated Television Services Pty Ltd v Marsden (at 167) cited with approval in TCN Channel Nine Pty Ltd v Antoniadis at 687 - 688. Nor, with respect to the primary judge, would such an imputation be a product of the reader's own beliefs and prejudices rather than of what is expressed and implied in the words of it. 36 The first matter complained of is reasonably capable of carrying imputation 3(d). The primary judge erred in striking it out. Imputation 3(e): the plaintiff behaved shamelessly in obtaining an Australian disability support pension having made an enormous amount of money from the theft of sugar donated for flood and disaster relief in his country The primary judge's reasons 37 His Honour noted (at [15]) the claimant's submission that: "[T]he reader would take from the article that whilst Prime Minister in 1989 the Plaintiff had stolen from his impoverished people grain which had been allocated to workers but which was sold on the black market, and also millions of dollars worth of sugar donated for flood and diaster relief. It was then put that, with that understanding, it was reasonable to conclude from the words of the article that the Plaintiff's behaviour in obtaining an Australian disability support pension was shameless". 38 His Honour rejected that submission. He said: "16 The article states the plaintiff is receiving the disability pension because of a kidney condition which, as a permanent refugee, he is entitled to immediately upon being granted a visa. Nothing is said or implied to suggest more than that he is receiving a pension to which he is entitled. The article does not suggest that at the time (2002) and in the circumstances of receiving it, it was shameless to accept it having regard to the money made from the past thefts. Nor does the article state or imply that the plaintiff's entitlement was, or should have been, affected by his previous corrupt conduct and the money made thereby. In my opinion nothing is to be found which invites the reader to pass judgment on the plaintiff's conduct in obtaining the pension and to conclude such conduct, in the circumstances, was shameless. I therefore find that the article is incapable of carrying this imputation." (emphasis added)

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The second matter complained of 64 While the first matter complained of focussed on the claimant, the only express references to him in the second matter complained of were on the front page (paras [1] - [2]), in the breakout box on page 9 (paras [4] - [8]) and on page 34 (paras [90] - [92]). Mr Campbell submitted, however, that the ordinary reasonable reader would understand the matters attributed to the claimant (particularly in paragraphs [90] - [93]) in the light of the themes of the second matter complained of: visa scandals and improper political influence (friends in high places). The reader would also associate the claimant with the sort of conduct attributed to Dante Tan who was identified as a "Philippine carpetbagger, corporate fraudster and political manipulator" (para [24]) who had won citizenship on fraudulent grounds (overlooked declaring he was on the run from the Philippine authorities after masterminding the largest corporate fraud in that country's colourful history - para [25]) and admitted to paying bribes (par [60]). He acknowledged the opponent had published the claimant's denial of the corruption charges, but argued that the reader would understand from paragraphs [90] - [93] that the opponent did not accept those denials. 65 Mr Lancaster submitted the theme he had suggested the ordinary reasonable reader would understand in relation to the first matter complained of, being a criticism of the Australian government for letting in a corrupt person, was more pronounced in the second matter complained of, where the reference to the claimant was only marginal albeit that reference to his case as " a new immigration scandal" appeared after a long list of immigration scandals. He pointed to the comparatively few references to the claimant, the statement that he had denied the corruption charges and Mr Ruddock's defence of his Department's decision to grant the claimant asylum, despite his conviction on corruption charges, because the Department had found the charges were politically motivated. 66 I accept that the ordinary reasonable reader could connect the claimant to the themes of the second matter complained of and that that association would colour the reading of the particular passages relating to him. I do not accept that the ordinary reasonable reader would associate the claimant with the particular sins visited on Mr Tan. The articles comprising the second matter complained of are sufficiently clearly expressed to keep the two men's actions separate. 67 I also accept that the reader could conclude that the claimant's denial that he was corrupt was given little or no weight by the author of the second matter complained of (apparently the same person for all articles - Mark Riley) because the substance of the first matter complained of is repeated in paragraphs [90] - [93] with the addition of the Prime Minister's statement that he would investigate the claimant's refugee status.

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Imputation 5(a): submissions on appeal 69 Mr Campbell submitted that imputation 5(a) focused on the claimant's act in obtaining refugee status and, thereby, perpetrating an immigration scandal. 70 He sought to challenge the primary judge's conclusion that imputation 5(a) was defective in form in that it did not state an act or condition of and concerning the claimant in reliance, in part, upon Gleeson CJ's statement in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137: "The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act , the provisions of the Rules of Court, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. In John Fairfax and Sons Ltd v Foord (1988) 12 NSWLR 706 this Court approved of Hunt J's leaving to the jury an imputation that the plaintiff was a criminal associate of drug dealers. No one suggested that it was necessary to identify with particularity the crime or crimes alleged to have been committed by the plaintiff, even though it is always theoretically possible to be more specific about an allegation that a person is a criminal." 71 Mr Campbell also sought to defend the fact that imputation 5(a) effectively repeated the words of the second matter complained of on the basis that, in some cases, such an approach was mandated by the nature of the matter complained of.

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Imputation 5(g): in the alternative to (e), the plaintiff behaved with impropriety in obtaining his refugee status in Australia. The primary judge's reasons 75 His Honour dealt with imputations 5(e) and (g) together because 5(g) was pleaded as a fallback to 5(e). The claimant's submission was that the second matter complained of would leave the reader with the impression that he was a person who should not have been granted entry to Australia and would therefore suspect that he had obtained refugee status by means which were corrupt or improper. The claimant argued that the effect of the segment concerning him in paragraphs [5] - [8] of the second matter complained of juxtaposed with paragraphs [9] - [17] (all of which appeared on page 9 of the Weekend Edition) when read with the lengthy article concerning the circumstances in which Mr Dante Tan obtained Australian citizenship and the references to the claimant in paragraphs [90] - [92] provided a reasonable basis for such suspicion. The claimant argued that the publisher had associated him with others who allegedly obtained favourable treatment from the Minister and the Immigration Department by corrupt and dishonest means. Accordingly, imputation 5(e) was said to encapsulate the reader's conclusion that, like the other persons referred to, he had probably used corrupt means to obtain refugee status. His Honour noted that although imputation 5(g) was expressed in terms of an allegation that the claimant in fact behaved with impropriety, the claimant was asking that it be treated as an alternative, not an addition, to imputation 5(e). 76 His Honour referred to the tests to be applied in determining the capacity of the matter complained of to convey the pleaded imputations noting that, in the final analysis, the test was one of reasonableness and concluded (at [44] - [47]): "44 In my opinion, a reasonable reader of the article as a whole would not understand it to carry these imputations of and concerning the Plaintiff although such a reader may have reached that conclusion about Mr Tan and Mr Hbeiche. Even to a reader who undertook only a superficial analysis of the whole of the matter complained of it would be apparent that a clear distinction is drawn between the circumstances in which the Plaintiff was granted asylum and the description of the activities of Mr Tan and others which have led to a political controversy involving the Minister and his department. 45 The article at pp 1 and 9 makes plain that the Plaintiff's claim that he was a political victim over corruption charges was accepted by the department to which his conviction had been disclosed. It reports the Plaintiff's denial of corruption charges and his claim that he was granted asylum because his life was in danger. There is no express or implied suggestion that the truth of these matters should be doubted or that the Plaintiff had resorted to corrupt or improper means to obtain asylum or, as the imputations allege, refugee status. In my opinion a reasonable reader would not confuse what was said about the Plaintiff and the grant of asylum to him with what was said in the other parts of the matter complained of about Mr Tan and other applicants so as to conclude that the Plaintiff was involved in similar conduct. 46 Furthermore, no support for these imputations is to be found in the passage at p 34 of the newspaper which appears at the end of the segment concerning Mr Tan in these terms: 'And now the Government faces a new immigration scandal with revelations that a corrupt former prime minister of Bangladesh has been granted refugee status here and is drawing social security benefits. Kazi Zafar Ahmed was sentenced in absentia to 15 years in prison for embezzlement. The case involved the theft and sale of wheat and rice destined for a food-for-work program for the poor. Ahmed fled to Australia two weeks before the sentence was handed down. The Prime Minister, John Howard, said yesterday he would investigate the granting of refugee status to Ahmed after his status was revealed in the Herald. That is the other thing that sets Immigration apart from the other portfolios - when the scandals come, they seem to just keep coming.' 47 Taken at their highest these words, in context, may lead the reader to understand that the circumstances in which the Plaintiff was granted refugee status and is drawing social security benefits warrant investigation to determine whether or not they involved improper conduct by him or by anybody else. They fall short of a capacity to carry imputations of guilt of corruption or impropriety in the terms of 5(e) and (g). (cf: Lewis; Harrison). Accordingly, I hold that the article is incapable of carrying these imputations."

[56]

Imputations 5(e) and (g): submissions on appeal 77 Mr Campbell essentially relied on the same submissions he had advanced to the primary judge in relation to imputations 5(e) and (g). He argued both imputations should go to the jury because the second matter complained of conveyed the "sense" that the claimant should not have his visa, that it was a scandal the Prime Minister was looking into and therefore the claimant had probably obtained it either by corrupt or improper means. 78 The word "probably" in imputation 5(e) as I understood Mr Campbell's argument, came from the statement in paragraph [92] of the second matter complained of that "the Prime Minister, John Howard, said yesterday he would investigate the granting of refugee status to Ahmed." Mr Campbell argued, in the alternative, that a reasonable reader could conclude the lesser imputation in 5(g) was carried. He contended that the pleader's problem was that the jury might think the second matter complained of did not go any further than saying the claimant behaved with impropriety of an unspecified nature, whether it was bribery or a party donation, in obtaining his visa. 79 Mr Campbell also submitted that the effect of the primary judge's statement (para [47]) that the words taken in context may lead the reader to think that an investigation was warranted because the claimant's visa involved improper conduct should have led his Honour to conclude that the impropriety imputation was capable of being conveyed and, too, that the improper conduct may involve corruption. 80 Mr Lancaster argued that it was clear the second matter complained of was discussing distinct immigration scandals, linked only by the common feature that each had created controversy in respect of the Government's immigration portfolio. As to imputation 5(e) he argued that the second matter complained of did not suggest any actual or probable corruption or impropriety on the claimant's part in obtaining refugee status. Rather, he observed, Mr Ruddock was reported as having confirmed that the claimant had properly disclosed his conviction and proffered an explanation, which had been accepted by the Government, namely, that the charges against him were politically motivated. 81 He also submitted that imputations 5(e) and (g) did not differ in substance, an argument which was not apparently considered below because the primary judge accepted that imputation 5(g) was pleaded as a fallback to 5(e). This argument was not the subject of a Notice of Contention and need not be considered further.

[57]

Imputations 5(e) and (g): consideration 82 In my view, imputations 5(e) and 5(g) are capable of being conveyed to a reasonable reader. Paragraphs [90]-[93] of the second matter complained of which focus on the claimant appear in the article (Friends in High Places) which takes as its theme the "outright corruption" in which "[t]he colourful world of immigration politics has long been mired" (para [28]). Moreover immigration politics "can blow up gloriously in a government's face because of the opportunity for all manner of hucksters and racketeers to attempt, sometimes successfully, to corrupt the process" (para [29]). 83 Examples are then given including former MP, Andrew Theophanous and Dante Tan. After an elaborate treatment of how Mr Tan had apparently "been able to manipulate the immigration system" (para [81]), the "revelations" concerning the claimant are set out. The word "revelations" itself connotes something hitherto concealed for reasons connected with impropriety. The "revelations" are said to be "a new immigration scandal" (more sensational language) involving a "corrupt former prime minister" being granted "refugee status … and …drawing social security benefits" (para [90]). It warranted prime ministerial investigation (para [92]). It would be open to the reasonable reader, in my view, to conclude that the claimant was in the class the article described who had used either corrupt or improper means to manipulate the immigration system, in his case, to procure refugee status. 84 Looking at the four articles comprising the second matter complained of, it is possible that a reasonable reader may regard the statements in paragraphs [5]-[8] as explaining that the claimant had obtained his visa legitimately. However, when it is seen that the Prime Minister does not, apparently, accept Mr Ruddock's explanation that the claimant had disclosed his conviction and that the Immigration Department had found his sentence "to have been politically motivated" as sufficient and wants the matter investigated, the inference is available to the reasonable reader that the circumstances in which the claimant obtained his visa were not above board. It will be a matter for the jury to determine the weight to be given to those parts of the second matter complained of which apparently accept that the claimant was a "political victim" and those parts which treat his circumstances as a "new immigration scandal": John Fairfax Publications Pty Limited v Rivkin at [26]. 85 I cannot, with respect to the primary judge, agree that a "clear distinction is drawn" between the circumstances in which the claimant obtained "asylum" and the circumstances concerning, inter alia, Mr Tan. Rather they both are identified in the second matter complained of as examples of the scandals involving "immigration politics". 86 The first matter complained of is reasonably capable of carrying imputations 5(e) and 5(g). The primary judge erred in striking them out.

[63]

Aggravated damages 96 The claimant's particulars of aggravated damages asserted that the hurt to his feelings was increased by the fact that the opponent had published further copies of the issues of the two newspapers outside Australia in places known to the opponent but not to him. The claimant particularised that allegation by reference, according to the claimant's written submissions, to "those places referred on the opponent's website" but also asserted the claim would be limited to particular places identified in the opponent's discovery and answers to interrogatories. 97 The claimant also relied for aggravated damages upon his knowledge that the opponent had continued to make the matters complained of available on its website so that they "were available to be inspected and downloaded anywhere in the world at any time of the day or night". The claimant said he would rely on the opponent's website "hit counter" recording the fact that numerous persons had had resort to the website on a daily basis. 98 It appears that at a hearing on 22 November 2004 the primary judge struck out those particulars of aggravated damages. 99 The White Book did not include any reasons given by the primary judge when he struck out the particulars. Mr Lancaster informed the Court that although a transcript of the proceedings before the primary judge had been sought, it could not be provided because of some difficulties in recording. 100 Mr Lancaster said, without contradiction that in striking out the particulars the primary judge referred to letters from the claimant's solicitors in which the particulars were elaborated, concluded they did not assist the claimant's case and then struck them out. Neither party sought more detailed reasons from his Honour. 101 After hearing this account of the proceedings concerning the application to strike out the particulars of aggravated damages, the Court indicated that it would not give the claimant leave to appeal from this aspect of his Honour's decision. This aspect of the claimant's leave application brought into stark relief the cautionary approach appellate courts exercise in reviewing decisions pertaining to practice and procedure: Adam P Brown Male Fashions Pty Limited v Philip Morris Incorporated & Anor [1981] HCA 39; (1981) 148 CLR 170.

[174]

It is undoubtedly correct to say that the Act adopts general law principles in relation to the tort of defamation; that is now expressly provided in s 6(2) of the Defamation Act 2005 (NSW), except to the extent where it provides otherwise. Because the statute does not define the scope of the tort, imputations must be pleaded and adjudicated upon in accordance with general law principles of what falls within the tort of defamation. 107 Similarly, s 7A(1) requires the judge to determine whether the 'matter complained of' is reasonably capable of carrying the imputation pleaded by the plaintiff and whether that imputation is reasonably capable of bearing a defamatory meaning. One might have thought it sufficient, at a trial with a jury, to invite the jury to consider whether the imputation should reasonably be drawn and, if so, whether it was defamatory of the plaintiff. However, the courts are directed that the jury must consider whether "ordinary readers", or even "the ordinary reasonable reader" would so understand the publication. That would seem to require that each member of the jury first determine whether, and in what respects, he or she may depart from that standard, rather than simply forming a view on the facts as presented. This appears to be an unnecessary gloss on a simple exercise. 108 The gloss is further complicated where the court is required to determine the legal question as to whether a particular conclusion is reasonably open or, in the statutory language, the publication "is reasonably capable of carrying the imputation pleaded". Thus, in Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 733C, the Privy Council held: "Their Lordships have already indicated that in a trial by judge and jury in New South Wales the preliminary question whether comment relied upon by a plaintiff as conveying the defamatory imputations that he alleges is capable of being so understood by a reasonable recipient of the comment is a question for the judge. This means, in effect, that it is for the judge to say whether a jury acting reasonably could properly hold that ordinary readers would understand the comment in the defamatory sense pleaded." 109 On one understanding, this language could be seen to invoke an exercise of undue complexity, and one not required by the straightforward terminology of s 7A(1). It is open to the same criticisms as those made in Weiss v The Queen [2005] HCA 81 at, eg, [40]. There the High Court held, in considering the exercise to be undertaken by an appeal court considering whether there had been a miscarriage of justice at a criminal trial: "But reference to a jury (whether the trial jury or a hypothetical reasonable jury) is liable to distract attention from the statutory task as expressed by criminal appeal statutes, … . It suggests that the appeal court is to do other than decide for itself whether a substantial miscarriage of justice has actually occurred."

[175]

In reference to the last sentence, the Court referred to the defamation case of Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [11] and [23]-[24]. In the passage at [11], the joint judgment in Favell noted the warning given by Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 277, "that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory". Their Honours then quoted from Lord Devlin a passage which included the following statement: "One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that." 110 In the second passage in Favell, referred to in Weiss, Kirby J stated under the heading "The fiction of the 'ordinary reasonable reader'": "[23] … The resort to this fiction has led appellate courts to define, and refine, the 'ordinary reader' whom the judges have in mind. This has led, in turn, to almost ludicrous elaborations concerned with where the notional 'reasonable, ordinary reader' lives (it is not in an ivory tower) and how he (only recently has a female reader been postulated) will approach the hypothetical task. … [24] It would be preferable to drop this fiction altogether. Judges should not hide behind their pretended reliance on the fictitious reasonable recipient of the alleged defamatory material, attributing to such a person the outcome that the judges actually determine for themselves. Appellate judges and judges in the practice list working under their supervision, should acknowledge candidly the reserve function that judges perform in our legal system in rejecting pleaded imputations that are not reasonably arguable by reference to the matter complained of. If the third party fiction were dropped, it is likely that a new formulation would emerge to explain more precisely and accurately the considerations according to which one imputation is accepted and goes to the tribunal of fact for its decision, and why another is not, so that the tribunal is spared the necessity of considering it."

[176]

Similarly, in Weiss , the Court rejected, as inviting error, a debate about whether the jury, whose hypothetical view the appeal court was required to identify, should be defined in any particular way: at [34]. The Court continued at [35]: "The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a 'substantial miscarriage of justice has actually occurred'." 111 As the Court noted at [38], invocation of the jury (together with various adjectival accretions) may be used by a court to remind itself of aspects of the legal principles relevant to its task. So the statutory language in s 7A(1) of the Defamation Act can be applied in its terms, always bearing in mind the legal context, but without reformulation of the test. 112 The second matter to be borne in mind in approaching such an exercise is the identification of general knowledge and understanding which would form part of the background against which the existence and nature of any imputation would need to be assessed. In Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 300-301, Mason J (in a judgment with which all the Court relevantly agreed) discussed what imputations might be drawn from a report that police, who had been investigating a serious bashing, had arrested the plaintiff and others, who were to be charged. His Honour stated: "The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted. In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices." 113 In cases such as Harrison, the reader's "knowledge and experience of human affairs" is relied upon to deny the availability of imputations which are said not to arise until a further stage in the legal process has been followed. In the present case, the question is slightly different, namely the extent to which the ordinary reader is to be credited with an understanding of the areas of public affairs which provide the context of the publication, being a context about which it is no doubt fair to say that members of the public who might read the publication tend to have a broad understanding, but little specific knowledge. 114 The present case concerns the administration of immigration law in Australia, with particular reference to a visa application by a person claiming to fall within the terms of the 1951 UN Convention Relating to the Status of Refugees. Some basic information is assumed by the author of the publication, whilst other aspects are referred to in the publication itself. 115 Accurate knowledge of the operation of the system is not important: thus, the publications in question are themselves replete with inaccurate language. For example, in the second publication at [5] the author refers to the applicant having been "granted asylum" in Australia: in fact he had been granted a protection visa which, at least to a lawyer, is materially different from asylum. 116 Similar issues can arise in relation to the comments with respect to the applicant being granted a disability pension. As explained by McColl JA at [41] the suggestion that the applicant was a wealthy man who had nevertheless obtained a disability pension, might give rise to an imputation of shameless venality. On the other hand, if the disability pension were means-tested, the fact that he was a wealthy man could give rise to a different imputation, namely of a form of dishonesty sometimes known as 'social security fraud'. That issue does not arise in this proceeding, but given that there is a relatively significant number of persons who enjoy, or may have applied for, or know people who enjoy, disability pensions, I would attribute to the ordinary reader a degree of understanding of the social security system which would include whether or not a disability pension was, at the relevant time, means-tested. 117 In relation to the obtaining of a protection visa, the following general knowledge should be assumed:

Kazi Zafar Ahmed v John Fairfax Publications Pty Limited

At a glance

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Judgment (187 paragraphs)

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