Faraj v Fairfax Media Publications Pty Ltd

1. [1]

   HIS HONOUR: Mr Faraj has commenced defamation proceedings against Fairfax Media Publications Pty Ltd (“Fairfax”), in respect of an article published in the Sydney Morning Herald and on associated online news sites on 12 April 2025. The article was written by the well‑known investigative journalist Ms Kate McClymont.

2. [2]

   Mr Faraj served a concerns notice on 31 July 2025 (“the Concerns Notice”), and he commenced these proceedings by Statement of Claim filed on 13 February 2025. Today is the first listing date of the matter, and in accordance with the requirements of Practice Note SC CL 4, the defendant has raised its objections by letter with Mr Faraj. Since, there has been a good deal of correspondence between Fairfax's solicitor, Ms Norman, and Mr Faraj dealing with those objections. Unfortunately, not all matters were able to be dealt with in a consensual manner, but the areas of dispute have been substantially reduced.

Issues

1. [3]

   The current iteration of Mr Faraj's claim is in a document which I have endorsed as proposed further amended statement of claim (“PFASOC”) which was handed up in Court earlier today. I have already, in a summary fashion, struck out [17] and [18] as they very clearly offend the requirements of rule 14.30(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The balance of matters in dispute are set out in a letter from Ms Norman, who has appeared before me today, dated 27 March 2026, which became MFI 4.

2. [4]

   The outstanding objections principally relate to whether the imputations pleaded at the foot of PFASOC [5] sufficiently correspond with the contents of the Concerns Notice to meet the statutory requirements prescribed by section 12B of the Defamation Act 2005 (NSW) (“the Act”) of being substantially the same as those particularised in the Concerns Notice.

3. [5]

   There are two categories of objection in relation to those matters. They are grouped together by Ms Norman as imputations which can be seen to have some connection with an imputation in the Concerns Notice on the one hand, and those which have no demonstrable connection with the Concerns Notice on the other. Other objections relate to imputation 2(b), which I will come to, and a substantive objection to each of imputation 9 and imputation 9(a) in terms of whether they are capable of having been conveyed by the subject article.

4. [6]

   Both Ms Norman and Mr Faraj, who is unrepresented, have provided me with summaries of their respective positions which make the disputes between them clear from my point of view. Ms Norman's document is MFI 2, and Mr Faraj's document is MFI 3.

Principles

1. [7]

   It is important to remind myself, anyway, that the main question (leaving aside imputations 9 and 9(a)) between the parties is not whether the article is capable of conveying the imputations as they are now proposed to be pleaded; my task is quite different from that. The question is, as I have already defined it, whether in terms of section 12B the pleaded imputations are substantially the same as those particularised in the Concerns Notice. It is important to bear that limited role in mind.

2. [8]

   The purpose of section 12B is to make sure that a case in defamation commenced in Court is the same case of defamation, in substance, complained of in the Concerns Notice. The legislative purpose of the provisions of Pt 3 Div 1 of the Act is to provide a regime, as the title to Pt 3 makes clear, for the resolution of civil disputes without litigation: s 3(d) of the Act. Those provisions are directed to that purpose. A potential dispute is raised by a concerns notice, which the publisher has the opportunity to consider, and an opportunity to offer to make amends: sections 13 and 14 of the Act. The goal of this is resolution between the parties without resort to the Court.

3. [9]

   The purpose and intent of this regime would be defeated if an aggrieved person, having served a Concerns Notice, was entitled at the conclusion of the non‑litigation period (the “applicable period”; s 14 of the Act), to commence in Court a case of defamation in respect of the same publication which was wholly, or even materially, different from that articulated in the Concerns Notice. This is not a mere matter of technicality; it is to ensure that the purposes of the Act are given the effect the legislature intended. I accept that the expression "substantially the same" does not mean identical. Rather one is concerned with the substance, not the form, of the imputation.

Connected Imputations

1. [10]

   I will deal with those imputations which the defendant accepts may have some connection with imputations articulated in the Concerns Notice. The first of them is imputation 1. Imputation 1 is, "The plaintiff engaged in fraud in relation to the NuGenesis cryptocurrency venture". The defendant concedes that there is some connection between that imputation and what appears in imputation (k) in the Concerns Notice. Mr Faraj says that one needs to look at imputations (k), (e) and (m) in the Concerns Notice. Concerns imputation (k), "NuGenesis, its officers or associates were involved in criminal or unlawful conduct, including fraud, money laundering or terrorism financing". He argues that the reference to fraud in imputation 1 is a subset of the criminal behaviour described in a non‑exhaustive way in concerns imputation (k).

2. [11]

   Ms Norman accepted that it could be said that imputation 1 is a subset of concerns imputation (k), but it is not substantially the same given the omission of other matters from imputation (k). These matters are necessarily matters of impression, and the purpose of the ruling is, of course, to do practical justice between the parties. I am of the view that although the language is not the same, and the form of the imputation is quite different, it is substantially the same and I propose to allow imputation 1.

3. [12]

   The next imputation in dispute in this category is imputation 2(a), "The plaintiff misappropriated millions of dollars paid by investors in the NuGenesis venture for his own benefit". The defendant acknowledges that imputation (b) from the Concerns Notice (“concerns imputation”) is similar but argues it is not substantially the same. Mr Faraj relies upon concerns imputation (b) but joins issue on the degree of similarity. Again, I am of the opinion that they are substantially the same. The gravamen of them both is that the plaintiff misappropriated millions of dollars paid by investors in the NuGenesis venture.

4. [13]

   There are extra words omitted when compared with concerns imputation (b), including the phrase, "unlawfully diverted". With respect, it is hard to see much difference between "misappropriation" and "unlawful diversion". Concerns imputation (b) omits that the unlawful diversion was for Mr Faraj’s own benefit, although I would have thought that was necessarily implied, particularly in “misappropriation”, and I will allow 2(a) to stand.

5. [14]

   There is an additional issue with 2(b) which I will come back to. Imputation 2(b) is, "The plaintiff was responsible for the disappearance of millions of dollars paid by investors into NuGenesis". Again, there is an acceptance that there is a similarity with imputation Concerns imputation (b), and Mr Faraj says it is substantially the same. He also invokes concerns imputation (k) about "criminal or unlawful conduct".

6. [15]

   I can say immediately that I am not satisfied that imputation 2(b) is sufficiently similar to concerns imputation (k). Part of Mr Faraj's argument is that because (k) uses the word "including" in a non‑exhaustive way to give examples of unlawful behaviour, any form of unlawful behaviour other than those listed is also effectively covered and capable of being pleaded in the statement of claim. I am not of that view. One has to bear in mind that the rules require the imputation relied upon to be “specified”, and a fair degree of precision is required of the pleader. Open‑ended words like "including" really do not have any place in pleading because the defendant is entitled to know the case the defendant has to meet, and to my mind, an open‑ended description of "criminal behaviour" is not substantially the same as what is pleaded in imputation 2(b). I would accept that imputation 2(b), however, for the reasons I have already given, is probably covered by concerns imputation (b) (see [12]-[13]).

7. [16]

   While I am dealing with imputation 2(b), it is probably just as convenient to deal with the objection to it taken separately, on the basis that it does not differ in substance from 2(a), which I have already referred to.

8. [17]

   UCPR r 14.30(3) provides:

9. [18]

   There may be a difference in nuance between misappropriation and causing money to disappear, but I do not see any difference in substance, and either way, the imputation is that the plaintiff misappropriated a large sum of money, and I would disallow imputation 2(b) on the basis of UCPR r 14.30(3).

10. [19]

    Imputation 3 is, "The plaintiff used bank accounts linked to Hezbollah, a terrorist organisation to move funds". It is acknowledged that that picks up some of the ideas conveyed by concerns imputation (a), which is in terms:

11. [20]

    Imputation 5 is, "The plaintiff dishonestly failed to pay employees to perform work for his company". The defendant acknowledges that has similarities to concerns imputation (c), which again perhaps casts the net much more broadly. “Wage theft” and “unlawful labour practices” are referred to, as are employees based in Lebanon. Imputation 5 omits that geographical connection, but again, I think substantially what is pleaded conveys the same matter in substance as concerns imputation (c), perhaps in plainer English, and I will allow imputation 5.

12. [21]

    Imputation 7, "The plaintiff submitted false documents to ASIC in connection with the NuGenesis crypto venture". Concerns imputation (g) is in broader terms. It refers to misleading conduct with respect to a group of companies. It does not mention the NuGenesis cryptocurrency venture. It does include the imputation that it made false statements to ASIC.

13. [22]

    In his submission, Mr Faraj refers to not only concerns imputation (g) but also concerns imputation (m) which is about posing a risk to investor interest. I think there is no connection whatsoever with imputation 7. While the matter is perhaps something of a lineball, the differences are not insignificant, including in imputation 7 a specific reference to NuGenesis cryptocurrency, and in concerns imputation (g), an imputation with respect to the Techno Group. I think the differences are such that it cannot be said that the imputations are substantially the same, and I would reject it and strike imputation 7 out of the FASOC.

14. [23]

    Imputation 9 is "The plaintiff falsely claimed to possess expert knowledge in cryptocurrency and blockchain technology". It has some similarity with concerns imputation (i), which is, "The plaintiff falsely claimed to be an expert in artificial intelligence and blockchain when he holds no such qualifications or industry recognition." I think that those allegations are substantially the same, and imputation 9 could stand. I will return, however, to the argument about whether the article fairly is capable of conveying that imputation. I will move on now to the matters which the defendant says do not have any connection with the Concerns Notice.

Unconnected Imputations

1. [24]

   The first is imputation 4, "The plaintiff threatened an investor who demanded the return of money paid in connection with the NuGenesis venture". I repeat what I have said already: the question for me at the moment is not whether the article conveys that imputation, but whether it is substantially the same as a concerns imputation.

2. [25]

   Mr Faraj relies upon concerns imputations (k) and (l). Concerns imputation (k) is the general reference to criminal or unlawful conduct referred to already. Concerns imputation (l) is an imputation that Mr Faraj and his associates were “dishonest operators unfit to conduct business in financial technology”. I am of the view that a general statement in a concerns imputation about criminal or unlawful conduct, or dishonesty, is not sufficient to meet the description of "substantially the same" with any type of conduct which might have those qualities but having the necessary level of specificity like imputation 4. As I have said, imputations have to be specified, and that means that their content has to be clear and capable of being understood, and in my opinion, it cannot be said that imputation 4 is substantially the same as either concerns imputations (k) or (l). I strike imputation 4 out of FASOC.

3. [26]

   The next matter is imputation 6, "The plaintiff misappropriated investor funds for personal luxury purchases, including the purchase of Bentley motor vehicles and residential renovations". Mr Faraj relies upon concerns imputations (b) and (j). I have referred to concerns imputation (b). It deals with misappropriation. Concerns imputation (j) is, "[Mr Faraj] is concealing significant wealth derived from improper or unlawful activity". In my judgment, there is a sufficient connection between (b) and (j), read together for this purpose, such that it can be said that the imputation 6 is substantially the same. I will allow it.

4. [27]

   Imputation 7(a) is, "The plaintiff established a front company in order to fraudulently obtain funds from investors in the NuGenesis cryptocurrency venture". Mr Faraj relies upon concerns imputations (g) and (e). Concerns imputation (g) relates to misleading conduct with respect to the Techno Group which I have referred to before. It, to my mind, has no possible connection with imputation 7(a). They are certainly not substantially the same.

5. [28]

   Concerns imputation (e) relates to NuGenesis ‘ecosystem’ being “a fraudulent or sham enterprise” rather than a genuine commercial platform, but there is nothing in that formulation which is substantially the same as what appears to be thrust or sting of imputation 7(a), which is that a front company, which may be a sham or a false venture, was created in order to fraudulently obtain funds from investors. For that reason, I reject imputation 7(a).

6. [29]

   Imputation 8 is, “The plaintiff knowingly operated the NuGenesis venture in partnership with persons who had criminal convictions”. Mr Faraj relies upon concerns imputation (k) which refers generally to criminal or unlawful conduct, and with respect, I cannot see any connection between that and imputation 8.

7. [30]

   He also relies upon concerns imputation (f) which is, "Mr Faraj falsely claimed to be the founder of NuGenesis and falsely discredited other individuals as its originators, including Mr Nick Petroulias and Mozammil Bhojani”. There is nothing in concerns notice (f) which identifies Mr Nick Petroulias, admittedly a notorious character in legal circles, or Mr Mozammil Bhojani as persons with criminal convictions, nor is there anything in that imputation which conveys the meaning that he was in partnership with them, and I reject imputation 8.

8. [31]

   Imputation 9(a) is that: "The plaintiff falsely held himself out as possessing expert knowledge, sufficient to give expert evidence in legal proceedings where his purported expert report was ruled unreliable and inadmissible". There was a deal of debate about this, and I have already referred to concerns imputation (i). In my opinion, dealing with the section 12B issue only, they are sufficiently similar for me to say that they are substantially the same, and I would allow imputation 9(a) on that basis.

9. [32]

   Imputation 10 is, "The plaintiff misled investors about the NuGenesis project by confusing them with technical explanations". Again, this is about the comparison with the Concerns Notice, not about the article. Mr Faraj relies upon concerns imputations (d) and (m). Concerns imputation (d) relates to "fraudulent misrepresentation of the nature, value or utility of the cryptocurrency, knowingly promoting it as a legitimate asset while it was worthless". With respect, there is nothing of that type in imputation 10.

10. [33]

    Concerns imputation (m) is about "misleading and deceptive conduct posing a risk to public, commercial and investor interest". Again, there is nothing there about, as it were, misleading investors by confusing them with technical explanations, and I would reject imputation 10.

Capacity to Convey Imputations 9 and 9(a)

1. [34]

   I now come to the objections about the capacity of the article to convey imputation 9 and imputation 9(a). The substance of each imputation is that the article asserted Mr Faraj “falsely claimed expertise”. This matter is dealt with in the article at line 233 to line 240. I will not quote the article in full, but the passage is about Mr Faraj being called as an expert witness in United States bankruptcy proceedings. He produced, apparently, a 172-page report, and the article records that the report was rejected and quotes what appears to be the judgment of the trial judge that the report was unreliable and failed to meet the standard for admission as expert evidence because, impermissibly under the rules of court, it was generated by AI. The judge also held, apparently, that the report "contained numerous errors ranging from duplicated paragraphs to mistakes in the description of the trading window selected for his evaluation".

2. [35]

   This passage of the article concludes with the words, "While his report was ruled inadmissible, [Mr] Faraj was allowed to give oral testimony". It does not expressly say that he was allowed to give expert oral testimony. Mr Faraj's argument is that the ordinary reasonable reader, with that person's strengths and weaknesses, is likely to latch on what is said about the rejection of his 172 page report, to be left with the impression that he was no expert at all, and would not understand the significance of the fact that as he was allowed to give oral testimony, that was obviously expert oral testimony. It seems to me that there is sufficient in that argument for that matter to be left to the tribunal of fact to determine whether or not the imputation is in fact conveyed, and I will allow 9 and 9(a) to stand on that basis.

Are Imputations 9 and 9(a) substantially different?

1. [36]

   Imputations 9 and 9(a) cover the same territory, at least in part. Imputation 9 is, "The plaintiff falsely claimed to possess expert knowledge in cryptocurrency and blockchain technology". Imputation 9(a) is more specific. It says:

2. [37]

   The defendant submits that there is no substantial difference for the purpose of UCPR r 14.30(3). I am of the view that there is a difference between "possessing expert knowledge" and "possessing sufficient expert knowledge" to be recognised as an expert in legal proceedings, capable of expressing an opinion, and it may well be something of a nuance, but it is a legitimate difference, and I think that they do differ in substance in that regard.

3. [38]

   There is a debate about the clarity of the preposition "when" in imputation 9(a) giving rise to some confusion because it usually connotes a merely temporal connection, and in the context that raises some ambiguity. Given what I have said, I will strike out imputation 9(a) but allow Mr Faraj to re‑plead it when he re‑engrosses the proposed FASOC. I am not being prescriptive – it is a matter for Mr Faraj - but an expression which better conveys the meaning in an unambiguous way will need to be put in.

Are Imputations 2(a) and 6 substantially different?

1. [39]

   Ms Norman has objected to 2(a) and 6 as not being substantially different for the purpose of UCPR 14.30(3). I am rather inclined to accept that that is the case. Substantially they mean the same thing. One speaks in general terms about Mr Faraj's own benefit, and the other speaks more specifically of buying luxury items. They both cannot stand. At the oral hearing, I gave Mr Faraj the opportunity to elect between the two. He chose to abandon imputation 6, and consequently I strike that out.

2. [40]

   For those reasons, I direct Mr Faraj to file a proposed further amended statement of claim in the form of the document handed up in Court on 27 March 2026, but incorporating my rulings. Each party’s costs of today are costs in the cause.