Rakhimov v John Fairfax Publications Pty Limited & Anor

Rakhimov v John Fairfax Publications Pty Limited & Anor - [2001] NSWSC 11 - NSWSC 2000 case summary — Zoe

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The First Matter complained of 12 Imputations 5(a) and 5(b), it was submitted, do not differ in substance and thus contravene SCR Pt 67 r 11(3). 13 For the defendants it was argued that the gist of each imputation, the defamatory impact or statement concerning the plaintiff's conduct is the same. Further, in the context of the article itself, "Russian Mafia" and "Criminal Racketeer" are interchangeable. The plaintiff argued that the difference in substance arises from the difference between a "foot soldier" (5(a)) and "the boss" (5(b)) - low level member and a major racketeer. This "hierarchical" distinction is a "nice" one, but unrealistic. Viewing the imputations in terms of the gist or impact referred to, they are clearly substantially the same. Viewing them both against the whole article each captures, but using different words only, the same notion of the plaintiff being "big time" not "small fry". 14 Imputations 5(a) and 5(b) do not differ in substance and will be struck out with leave to re-plead. 15 No objection is to taken to imputation 5(c) which will go to the jury. 16 Imputations 5(d) to 5(g) were attacked individually as to form on several bases: unnecessary verbiage in 5(d) "while at the Atlanta games"; uncertainty as to meaning of "positioning" and "control"; potential for ambiguity in the use of the word "misappropriate". Imputation 5(g), it was submitted, offends the principles in Monte v Mirror Newspapers [1979] 2 NSWLR 663 at 677B as to "rolled-up" imputations. It does so offend, in my view, by involving at least two separate notions "corrupting" and by "misappropriation" (whatever that means) and "financing illegal activities". I have no difficulty with the use of the words "while at the Atlanta games" - I think they are important in the attempt to capture the sting. Nor do I have difficulty with "positioning" as a reasonably understood concept. However the importation into imputations of expressions such as "Olympic ideals" and "Olympic movement" is unwarranted by reference to the text and conducive to uncertainty, at least, as to the meaning of the imputation in question. 17 These four imputations are flawed for the reasons advanced for the defendants. They appear to be pointing to essentially the same thing - the positioning of the plaintiff (at the Atlanta games) vis-a-vis the IBF to enable him to channel/direct/appropriate its share of Olympic money to criminal gangs/enterprises. It is instructive to consider the abandoned original imputation 5(d): "that the plaintiff took control of international amateur boxing so as to enable him to use its share of profits from the Olympic games for criminal purposes". That imputation, arguably, gets close to articulating the sting. 18 Imputations 5(d), (e), (f) and (g) will be struck out as bad in form and not differing in substance with leave to re-plead.

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The second matter complained of. 19 The defendants submitted imputations 7(a), (b) and (c) do not differ in substance. The particularised parts of the matter complained of in support of 7(c) (lines 12-13, 42-43, 71, 74-75) cannot, in my view, isolate smuggling heroin and cocaine to a lesser or different extent to the large scale conduct reflected in imputation 7(a) and (b). These imputations will be struck out with leave to re-plead. 20 Imputation 7(d) is quite florid and really should be rendered less Dantonesque. An imputation that states that the plaintiff was so dangerous a criminal as to be a threat to public safety in France may suffice. I decline however at this stage to strike this imputation out. It is capable of arising and of being defamatory. The pleader might reconsider its wording and the present extravagance of it when exercising the right to re-plead generally. 21 Lines 11 to 13 and 25 to 26 provide the basis for imputation 7(e). Seven separate forms of criminal conduct are stated. Either seven separate imputations are required or one which captures (but not in a rolled-up way), the quality of a person so multi-faceted or versatile in his criminal behaviour. Imputation 7(e) will be stuck out with leave to re-plead, care being taken with respect to r 11(3) and imputation 7(k) (below). 22 Imputation 7(f) is not challenged and will go to the jury. 23 Imputations 7(g) - 7(j) will be struck out with leave to re-plead on the same bases as attended imputations 5(d) - (g). 24 With respect to imputation 7(k) the defendants argued that it was bad in form. The phrase "in the Soviet black economy" is totally non-specific and is a meaningless addition. It was suggested that some extraneous materials or facts would have to be known to the reader to permit an understanding of any defamatory impact of any statement to this effect. A fortiori, when it was submitted, as I understand it, no act or conduct or condition is ascribed to the plaintiff. The words of the imputations are to be found in lines 48-50 of the text of Appendix B. Contrary to the submissions for the defendant I am of the view that there would be no uncertainty as to what the imputation is stating by its terms; that no extraneous knowledge in the jury would be required and that conformably with what was stated by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137B, this is an instance where practical justice permits the adoption of the language of the matter complained of. That adoption leads to an imputation proper in form, capable of arising and capable of being defamatory. It shall go to the jury.

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The Pleading of the First & Second Matters/Issue 26 It is argued for the defendants in respect of the first and second matters complained of that pleading them separately is vexatious and embarrassing. The plaintiff has chosen to sue the same defendants in the one action in respect of two publications giving rise, for all intents and purposes, to the same imputations - the same causes of action (Defamation Act 1974 s 9(2)). The articles contain material in common and the first indicates or directs the reader to the second. Thus, it was submitted, by virtue of s 9(3) and SCR Pt 67 r 11(3) - see s 9(4) - imputations (the causes of action) must differ in substance. 27 The defendants did not dispute that there may be occasions for a plaintiff to take the course which he has done but, importantly having sued two defendants in respect of the "separate publications published on the same day and in the same newspaper conveying the same imputations" it is vexatious and an attempt to "double dip" on the question of damages. 28 Assuming for the moment the question of propriety of the course adopted by the plaintiff, the question of damages is really not so serious a one, it is really a matter for the trial judge and ss 46A and 48 will apply as will the general principles as to the award of an appropriate amount of compensation to the plaintiff for having been damaged in his reputation by the publications complained of and the imputation sued upon as carried thereby. 29 It was not submitted for the defendants that anything said by Hunt J in Burrows v Knightley [1987] 10 NSWLR 651 supports the contention. It was litigation of an entirely different structure to which this case can be contrasted. In Lucas v John Fairfax Publications Pty Limited [2000] NSWSC 950 (13 October 2000) I considered Burrows v Knightley (paras 11 and following) in the context of a case yet again of a different structure. I permitted the pleading separately of two matters complained of; one defamatory by itself and that same article with a juxtaposed second article (not defamatory) where the "physical connection" was closer than applies here. 30 If the two articles can be viewed as separate publications and be understood to be so - notwithstanding links - I am of the view that the pleading here is proper. It was submitted for the plaintiff that I had no evidence. In the strict sense that is correct. I was however provided with photocopies (not marked as exhibits) and can apply in an interlocutory Defamation List dispute of this kind, my common sense and knowledge of the world, as-it-were. 31 The first matter complained of fairly can be described as a news report on page 15 of The Sydney Morning Herald. The second is in the separate section, "Spectrum" (pages 1 and 6) - a commentary/analysis/review component of the Saturday Herald. I cannot come to the conclusion that readers would read both and understand the existence of an objective intention in the defendant that both articles were to be read. The distinct nature of the publications, although in the one newspaper, is such as to preclude a conclusion that the separate pleading is vexatious and embarrassing. As I have already remarked the matter of damages is subject to statutory and common law principles that would obviate a plaintiff being entitled to "double dip". 32 I decline to strike out paragraphs 4, 5, 6 and 7 of the Further Amended Statement of Claim. 33 I will not remark upon, at this stage, the propriety of the defendant pleading a defence under s 16 of the Act (contextual imputations) in respect of one article by reference to the content of the other. 34 The issue of "re-publication" was raised in the course of submissions. This arises acutely in relation to the second defendant. The plaintiff pleads that the second defendant is the author of a book entitled "The Great Olympic Swindle" (see paragraph 3). The second matter complained of is clearly an extract from that book. The first matter complained of reports, inter alia, the fact that the book exists and refers to some of its contents. The second defendant is sought to be made liable for the publication of both matters complained of. Arguably paragraph 3 of the Further Amended Statement of Claim pleads no material fact. As was submitted, the plaintiff having made the statement in that paragraph, it could be anticipated that the liability of the second defendant would rest in re-publication. As I have remarked this applies particularly in respect of the second matter complained of which has been identified as being published by the first defendant as an extract from the second defendant's book. 35 It is to be borne in mind that under s 7A(4) of the Defamation Act 1974 "publication" is an issue to be determined by the jury. The pleading is presently quite unclear as to the foundation of liability in the second defendant in respect of each matter complained of. The plaintiff's reconsideration of his position vis-a-vis the second defendant as a "publisher" will be crystallised by striking out paragraph 3 of the Further Amended Statement of Claim as containing no material averment. 36 The defendants have succeeded overall in relation to the imputation issues: the defendants failed on the separate pleading points. The appropriate order for costs is that the plaintiff pay two-thirds of the defendants' costs. 37 Accordingly, the formal orders are:

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