Kazal v Fairfax Media Publications Pty Limited

The plaintiff, Oscar Kazal, commenced proceedings for damages for defamation arising out of publications by the defendants in March 2013 (the Sixth Matter Complained Of) and May 2013 (the Seventh and Eight Matters Complained Of). The publications, headed “Bad Company”, concerned members of the Kazal family, including the plaintiff, and their relationship with John David, a business man who was, for a time, incarcerated in the United Arab Emirates, having previously been associated in business ventures with the Kazal family in Australia. The publications also purport to document the way in which the Kazal family does business and explain their evident success by reference to the means adopted by them, including by currying favour with politicians.

There is an issue, which need not be resolved for present purposes, whether the publication was solely online (for which the second defendant was responsible), or whether there was also a print version (for which the first defendant was responsible). The journalists, Linton Besser (the third defendant) and Kate McClymont (the fourth defendant), are also parties.

The plaintiff sought leave to amend his statement of claim. The draft version, which was marked “MFI1”, was the subject of objections from the defendants, the scope of which narrowed in the course of the hearing.

The plaintiff alleges:

Mr Blackburn SC, who appeared with Mr Polden on behalf of the defendants, submitted that the word “corruptly” was inherently ambiguous and that, accordingly, paragraph [10] was bad in form. He relied on Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 (Drummoyne) at 138 per Gleeson CJ where the test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155 was approved: namely a formal objection to an imputation is to be resolved by asking whether there is likely to be confusion at either the pleading or the trial stages in relation to the meaning for which the plaintiff contends. He also referred to Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 40 - 41 where Hunt J emphasised the importance of imputations being pleaded in proper form in order that the matter that the defendant has to prove in order to justify the imputation be sufficiently clear.

Mr Blackburn also relied on Drummoyne in support of the proposition that the word “corruptly” is redolent with different meanings. He referred in particular to what Gleeson CJ said at 138 as follows:

Mr Blackburn identified the following meanings as among those encompassed by the word “corruptly” as it applies to a private person who is not the holder of public office:

Mr Blackburn pressed the capacity objection, but only, as I understood it, to protect the defendants’ position, depending on the ruling as to the form objection.

Mr McClintock SC, who appeared with Mr Kay Hoyle on behalf of the plaintiff, contended that, in the context of the imputation as pleaded, it was clear that the word “corruptly” was being used in the context of the plaintiff’s providing benefits to politicians with a view to obtaining unmerited favours. Mr McClintock offered to replead imputation 10(a) to insert after the word “corruptly” “(in the sense of obtaining an unmerited benefit)”. Mr Blackburn did not accept this amendment as curing the difficulty or removing the grounds for the defendants’ objection.

The passage from Drummoyne set out above addresses the possible meanings of the word “corruptly” from the point of view of the public official. However, there is a degree of symmetry in the notion of corruption in that the act of giving as well as the act of receiving a benefit where the recipient is the holder of a public office falls within the term. In my view, the further amendment proposed by Mr McClintock is sufficient to cure the objection and make plain that what is being alleged by the word “corruptly” is tantamount to bribery in the sense used in the common law: namely:

Accordingly, leave to replead as proposed is appropriate.

Whether certain imputations are capable of arising is to be adjudged from the standpoint of the ordinary reasonable reader who has read the whole of the matter complained of. One must consider the broad impression conveyed by the matter complained of and not the meaning of each word under analysis. If ordinary reasonable readers may differ as to whether the matter complained of was capable of carrying the imputation then the issue must be left to the jury: Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158 at 164, Hunt CJ at CL (Mason P and Handley JA agreeing). I am satisfied that the imputation is capable of arising from the matter complained of.

The plaintiff alleges:

The particular extract from the Matter Complained Of relied upon(in addition to the whole) was:

In the course of argument, Mr McClintock sought leave to replead by deleting the words “corruptly sponsoring politicians” and substituting the words: “providing politicians with financial benefits”.

Mr Blackburn accepted that the proposed repleading overcame his form objection but maintained the capacity objection.

In my view the imputation as amended is capable of arising from the matter complained of. Although it is not the only way it could be read, the sequence of paragraphs and the use of the word “also” in the extract above (when read in the context of the whole publication) is, in my view, capable of suggesting a causal connection between the benefits provided by the Kazals and the benefits obtained by them.

The plaintiff alleged:

Mr Blackburn maintained his objection to the form of the imputation and also to its capacity. He also contended that it did not differ in substance from imputation 14(b) and ought, accordingly, be struck out.

In my view, the imputation is sufficiently clearly pleaded. While there are various nuances incorporated in the word “corruptly”, the word takes its meaning from its context. The context in which it appears in paragraph 14(c) makes it clear what is alleged: namely that the “favourable deals” were the quid pro quo for, or the result of, the plaintiff’s corrupt conduct. I am satisfied that the imputation is capable of arising from the matters complained of.

Although it is similar to paragraph 14(b) I consider there to be sufficient difference in substance to warrant its being separately pleaded.

Mr McClintock conceded that these should be struck out with leave to replead.

The plaintiff alleged that the matters complained of gave rise to the following imputation:

Mr McClintock offered to replead this imputation by deleting the word “baseless” and inserting the words “which he knew to be baseless” after the word “proceedings”. Mr Blackburn accepted this proposed amendment as sufficient to overcome his objection.

Mr Blackburn withdrew his objection to this paragraph.

Mr McClintock accepted that this paragraph ought be struck out with leave to replead.

The question of costs is reserved. If agreement cannot be reached, submissions should be forwarded to my Associate. If either party seeks an oral hearing, I shall provide for that liberty in the orders.

For the foregoing reasons I make the following orders: