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Supreme Court of New South Wales - Court of Appeal |
CITATION: Kazi Zafar Ahmed v John Fairfax Publications Pty Limited [2006] NSWCA 6
FILE NUMBER(S):
40925/2004
HEARING DATE(S): 4 August 2005
DECISION DATE: 03/02/2006
PARTIES:
Kazi Zafar Ahmed v John Fairfax Publications Pty Limited
JUDGMENT OF: Santow JA McColl JA Basten JA
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 20026/2004
LOWER COURT JUDICIAL OFFICER: Nicholas J
COUNSEL:
R A Campbell (Claimant)
R P L Lancaster (Opponent)
SOLICITORS:
Parish Patience Lawyers (Claimant)
Freehills (Opponent)
CATCHWORDS:
DEFAMATION - whether matters complained of reasonably capable of conveying imputations to ordinary reasonable reader - HELD - primary judge erred in striking out imputations - ordinary reasonable reader would read the matters complained of in the sense for which the claimant contended - 8 out of 10 causes of action restored - REASONS - observations concerning judicial obligation to give reasons. (D)
LEGISLATION CITED:
Migration Act 1958 (Cth)
DECISION:
(1) Grant leave to appeal from the decision of Nicholas J of 1 October 2004. (2) Notice of appeal to be filed in seven days. (3) Allow the appeal as to imputations 3(d), (e), (g), (h) (i) and (m) and 5(e) and (g). (4) Respondent to pay the costs of the appeal. (5) Refuse leave to appeal in respect of Nicholas J’s orders of 22 November 2004 striking out the particulars of aggravated damages. (6) Claimant to pay the costs of the application for leave to appeal from the order striking out of the particulars of aggravated damages.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40925/04
SC 20026/04
SANTOW JA
McCOLL JA
BASTEN JA
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.
The claimant’s imputations
10 The claimant pleaded in paragraph 3 of the Amended Statement of Claim that the first matter complained of, in its natural and ordinary meaning, bore the following imputations which were said to be defamatory of him:
“a. the plaintiff is a thief in that he stole food from his people;
b. the plaintiff as Prime Minister of Bangladesh was convicted of stealing food from his flood-ravaged people;
c. the plaintiff as Prime Minister of Bangladesh corruptly profited by selling food which he stole from his flood-ravaged people;
d. the plaintiff dishonestly obtained an Australian disability support pension;
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;
f. the plaintiff as Prime Minister of Bangladesh was criminally involved in the hijacking of a multi-million dollar aid shipment of sugar donated as flood and disaster relief in his country;
g. the plaintiff obtained sanctuary in Australia as a refugee by dishonest means;
h. the plaintiff lied to Australian Government officials to obtain entry to Australia as a refugee in that he falsely claimed to fear persecution in Bangladesh;
i. the plaintiff is abusing the sanctuary provided by Australia to avoid paying for any crimes committed in Bangladesh;
j. the plaintiff fled from Bangladesh because he knew that he was guilty of corruption, or guilty of hijacking a multi-million dollar aid shipment of sugar donated as flood and disaster relief in his country and was seeking to escape the consequences;
k. the plaintiff as Prime Minister of Bangladesh stole grain that his government had allocated for workers on a land fill site where his government planned to build a cancer hospital;
l. the plaintiff behaved corruptly as the Prime Minister of Bangladesh in selling grain on the black market that his government had allocated for workers on a land fill site where his government planned to build a cancer hospital; and
m. the plaintiff is a cheap fraud in that he would stoop to dishonestly obtaining an Australian pension despite having enriched himself through the theft of grain and sugar in Bangladesh”.
Nicholas J struck out the underlined imputations. The claimant does not seek to challenge his Honour’s ruling in relation to imputation 3(b).
11 The claimant pleaded in paragraph 5 that the second matter complained of, in its natural and ordinary meaning, bore the following imputations which were said to be defamatory of him:
“a. the plaintiff’s obtaining refugee status in Australia was an immigration scandal;
b. the plaintiff has been found guilty of embezzlement for which he was sentenced to 15 years in prison;
c. the plaintiff stole from the poor in that he stole wheat and rice destined for a food-for-work programme for the poor;
d. the plaintiff fled from Bangladesh because he knew that he was guilty of stealing food from the poor and was seeking to escape the consequences;
e. the plaintiff probably used corrupt means to obtain his refugee status in Australia;
f. the plaintiff is dishonestly drawing social security benefits in Australia; and
g. in the alternative to (e), the plaintiff behaved with impropriety in obtaining his refugee status in Australia.”
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.
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] HCA 50; (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[1835] EngR 38; ; 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
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] HCA 50; (1982) 149 CLR 293 at 301). I therefore find that the article is incapable of carrying this imputation.”
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)
Imputation 3(e): submissions on appeal
39 Mr Campbell submitted that having regard to what the claimant was said to have done in Bangladesh, the ordinary reasonable reader was invited to conclude that he had no shame, that having “wriggled” into Australia in a way which he should not have (fleeing his own country after stealing relief and food aid) he then “grabbed” a pension. He argued that the article excited outrage and indignation at the fact that the claimant was happily living in Sydney on a disability pension, in the “safe haven for corrupt Bangladeshi PM”.
40 Mr Lancaster argued that while the first matter complained of attacked the claimant’s history in Bangladesh, it did not criticise the circumstances in which he obtained his disability pension because it accepted his kidney condition as genuine. He also contended the article did not suggest that the claimant was currently a wealthy man so that a reasonable reader would not draw an adverse inference from the fact he was drawing a pension from the Australian government.
Imputation 3(e): consideration
41 I cannot, with respect, agree with the primary judge’s observation that there was nothing in the first matter complained of 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”. The first matter complained of questions the legitimacy of the claimant’s position in Australia both in terms of how he obtained his refugee status and how he, in turn, used that status to procure a disability pension (albeit in relation to a genuine medical condition) years earlier than if he had been an ordinary migrant. It sets that conduct against his asserted involvement in the theft and sale of food in Bangladesh, conduct which in the ordinary course would be shameless but the venality of which is exacerbated by the fact the stolen food was intended for his “flood-ravaged people” (para [2]).
42 In my view it would be open to the reasonable reader of the first matter complained of to conclude that the claimant had profited to a substantial extent from his involvement in the sale of food stolen from the people of Bangladesh, so that it would be shameless behaviour on his part to obtain, in addition, a disability support pension from the people of Australia.
43 The first matter complained of is reasonably capable of carrying imputation 3(e). The primary judge erred in striking it out.
Imputation 3(g): the plaintiff obtained sanctuary in Australia as a refugee by dishonest means
Imputation 3(h): the plaintiff lied to Australian Government officials to obtain entry to Australia as a refugee in that he falsely claimed to fear persecution in Bangladesh
The primary judge’s reasons
44 The primary judge dealt with imputations 3(g) and 3(h) together. He noted the claimant’s submission that (g) was an allegation in general terms and (h) was an allegation of specific misconduct and that both arose from the same passages in the first matter complained. Submissions similar to those supporting imputation 3(d) were said to support imputations 3(g) and 3(h). The claimant argued that the headline “Australia welcomes Bangladeshi PM who stole his people’s food” and the opening paragraphs engendered suspicion in the reader’s mind as to how it came about that he was granted a refugee visa. He relied, in particular, upon paragraphs [6] and [7] of the first matter complained of and argued that a reader would understand that he had secured his refugee visa by lying to the authorities that he had a well-founded fear of persecution which was false because since he obtained it he had made two return visits to Bangladesh, on one of which he was reported to have resumed leadership of a political party.
45 His Honour regarded those submissions as misconceived. He said (at [22]):
“The thrust of the allegations as pleaded is that he obtained his refugee visa by dishonest means, and thus focuses upon the occasion of his application for, and of the grant of, that visa. Nothing is said in the article about this process indicative of dishonesty on his part. The statement about his return trips does not provide the basis for a reasonable reader, or even a reader who reasonably understood that the plaintiff had been a corrupt and dishonest Prime Minister, to conclude that he had dishonestly obtained the refugee visa in some general and unspecified way, or by lying to the Australian government by claiming fear of persecution. Either conclusion would be the product of belief and prejudice but not of what was published. Neither is capable of being carried by the article.”
Imputations 3(g) and (h): submissions on appeal
46 Mr Campbell repeated his argument that the first matter complained of described the claimant as a fleeing felon and not somebody who feared persecution so that, in applying for entry to Australia, he must have dishonestly claimed to be the latter rather than the former. He also contended the claimant’s statement that he feared persecution must be false because he had returned to Bangladesh whenever he was so inclined – including, on one occasion, resuming leadership of the Jatiya political party.
47 Mr Lancaster argued that the first matter complained of expressed surprise and implicit criticism of the Australian government for “welcoming” a person who had been convicted of the offences it described by granting him refugee status and a visa. He contended there was no express or implied suggestion in the article that the claimant had been dishonest in his dealings with the Australian government during the processing of his application for refugee status. He argued that the reference to Mr Ruddock’s spokesman confirming that a criminal record did not automatically prevent a person from being granted refugee status confirmed that the article could not be taken to be implying that the mere fact of being granted a visa (in circumstances in which the claimant had been convicted of an offence in Bangladesh) demonstrated some impropriety.
48 Mr Lancaster’s written submissions also argued that imputations 3(g) and 3(h) did not differ in substance: SCR Pt 67 r 11(3). In oral argument, however, he accepted there was a r 11(3) argument before the primary judge who appeared to have acknowledged that there was a general and a specific thrust to the two imputations and had, implicitly rejected any 11(3) argument and that the opponent had not challenged that finding.
Imputations 3(g) and (h): consideration
49 In my view the claimant’s submissions concerning imputations 3(g) and 3(h) are well founded. The primary judge’s analysis, with respect, failed to have regard to the tenor of the first matter complained of as a whole. The article gives only one reason for the claimant’s presence in Australia: avoiding prosecution and sentence in Bangladesh. He managed, nevertheless, to obtain a refugee visa which depended upon having “a well-founded fear of persecution for [refugee] convention related reasons” (para [6]). No such reasons are even hinted at. The ordinary reasonable reader could, in my view, understand the matter complained of to be asserting that in order to obtain a protection visa the claimant had made dishonest representations to the Immigration Department concerning the reasons he left Bangladesh to allow him to avoid the prosecution he feared in that country.
50 That conclusion is reinforced by the apparent impunity with which he travelled to Bangladesh, a matter which, it might be argued, counters the suggestion that the claimant was avoiding persecution in Bangladesh. Having regard to the caution which should be exercised in applications of this nature and too, to the capacity of the reasonable reader to give different weight to different parts of an article, it should be a matter for the jury to determine whether that part of the first matter complained of gives rise to these imputations.
51 The first matter complained of is reasonably capable of carrying imputations 3(g) and 3(h). The primary judge erred in striking them out.
Imputation 3(i): the plaintiff is abusing the sanctuary provided by Australia to avoid paying for any crimes committed in Bangladesh
The primary judge’s reasons
52 His Honour noted that imputation 3(i) was cast in the present tense although, ultimately, nothing appears to have turned on this. The claimant argued that the reader would conclude that he was a crook still on the run to avoid the consequences of convictions in Bangladesh on corruption charges and of facing four other corruption charges, and that by remaining in Australia he was abusing the sanctuary which was available to political refugees. He relied, in particular, on the headlines on both pages 1 and 4 of the first matter complained, the statement in paragraph [7] that, since coming to Australia, he had made two return visits to Bangladesh and reportedly resumed leadership of a political party as well as paragraph [11] which referred to the occasion in 2001 when the claimant was said to have returned to Bangladesh, been arrested but released on bail after lodging an appeal as well as having been granted bail in four other corruption cases against him including one involving “the sugar shipments”.
53 His Honour concluded:
“26 In my opinion the article provides no support for this imputation and, when read fairly, contradicts it. It reports that he has returned on a number of occasions since his conviction in absentia in November 1999 and, indeed, since his arrest in Bangladesh in 2001 when he was released on bail pending appeal against the sentence and granted bail on other corruption charges. I therefore find it is not reasonably open to conclude that the article is saying that in fact he is avoiding paying for crimes in Bangladesh and in order to do so is abusing his entitlement to stay in Australia. The article is incapable of carrying this imputation.”
Imputation 3(i): submissions on appeal
54 Mr Campbell submitted that it would be considered an abuse of a claim to refugee status and the sanctuary it provided to use it as a cover to seek to evade the police. He said that the article left unexplained how the claimant was able to return to Bangladesh despite his fear of persecution. He argued that the fact the first matter complained of was illogical in this respect was not to the point and that a reader might conclude the claimant had used corrupt means to travel to and from Bangladesh.
55 Mr Lancaster submitted that although the first matter complained of conveyed that the claimant had left Bangladesh to avoid the sentence imposed upon him by its courts and that the “sanctuary” he had obtained in Australia was a characterisation of the grant to him of refugee status and a visa, it was not capable of conveying that the claimant was “abusing” that sanctuary. It did not criticise the claimant for his conduct in Australia as a person granted refugee status.
Imputation 3(i): consideration
56 In my view a reasonable reader could read the first matter complained of as carrying imputation 3(i). It is true that the statement that the claimant had returned to Bangladesh on two occasions, on one, resuming his political career and on another apparently facing court, as the primary judge said, contradicts the assertion that he was trying to avoid “paying for any crimes committed in Bangladesh”. However the first matter complained of also paints the claimant as having fled Bangladesh to avoid sentence and, once in Australia, having apparently secured his safety in this “safe haven” by procuring a visa only available to those with a well-founded fear of persecution. While I think this imputation is more problematic than the others, it should, on balance be allowed to go to the jury which can, if so minded, deal with it in the commonsense manner Kirby J indicated in Favell.
57 The first matter complained of is reasonably capable of carrying imputation 3(i). The primary judge erred in striking it out.
Imputation 3(m): the plaintiff is a cheap fraud in that he would stoop to dishonestly obtaining an Australian pension despite having enriched himself through the theft of grain and sugar in Bangladesh.
The primary judge’s reasons
58 His Honour dealt briefly with imputation 3(m). He noted (at [33]) that a key component of it was that the claimant dishonestly obtained an Australian pension, being the disability pension and said that, for the reasons he had given for rejecting 3(d), the article was incapable of carrying imputation 3(m).
Imputation 3(m): submissions on appeal
59 Mr Campbell submitted the ordinary reasonable reader would understand the first matter complained of to be saying the claimant was a cheap fraud because he would stoop to obtaining an Australian pension of $370 a week dishonestly despite having enriched himself through the theft of food in Bangladesh.
60 Mr Lancaster submitted imputation 3(m) should be rejected for the reasons the primary judge gave. He suggested the imputation was “overblown” and failed at the first level because the article did not suggest the claimant’s disability pension was dishonestly obtained.
Imputation 3(m): consideration
61 The primary judge struck out imputation 3(m) because the key component of both it and imputation 3(d) (which he had already rejected) was that the claimant had dishonestly obtained an Australian pension.
62 I have already held that imputation 3(d) is capable of being carried. In my view a reasonable reader could also understand the matter complained of in the sense of imputation 3(m). I accept the claimant’s submission that the article’s focus on the millions of dollars the claimant had apparently helped himself to in Bangladesh compared to the $370 fortnightly pension he procured in Australia could convey to the reasonable reader the sense that the claimant was prepared to grasp at every cent, no matter how wealthy he was. That interpretation is not so strained as to be unreasonable. It may not be a conclusion which all readers would reach, but that does not deprive the claimant of the opportunity of advancing it to a jury: Griffith v John Fairfax Publications (at [19](c).
63 The first matter complained of is reasonably capable of carrying imputation 3(m). The primary judge erred in striking it out.
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.
Imputation 5(a): the plaintiff’s obtaining refugee status in Australia was an immigration scandal
The primary judge’s reasons
68 His Honour struck out imputation 5(a) on the basis that it was defective in form in that it failed to identify any act or condition asserted of, or attributed to the claimant, or with which he was charged. He said that the pleader was obliged to do more than merely repeat the word “scandals” from a headline and the words “immigration scandal” from paragraph 90 of the second matter complained of. He referred to Monte v Mirror Newspapers Limited (1979) 2 NSWLR 663 at 678 where Hunt J said:
“Yet it is the meaning alleged to have been conveyed by the words, rather than the words themselves which it is important to have precisely defined in the imputation complained of by the plaintiff. In very few cases would it be sufficient merely to repeat the wording of the matter complained of itself. Very rarely is that act or condition stated expressly in the matter complained of; rather it is more usually implied or to be inferred ... But I maintain that, in very few cases, will the words be plainly expressed as a charge against the plaintiff, so that a mere repetition of the words in the matter complained of will be a sufficient compliance with r. 11(2).”
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.
Imputation 5(a): consideration
72 The claimant was obliged to identify “in his imputation the act or condition which he will ask the jury to accept was understood by the ordinary reasonable reader as having been attributed to him by the matter complained of”: Harvey v John Fairfax Publications Pty Ltd t [125] per Hunt AJA. Imputation 5(a) does not plead an act or condition of the claimant. It is, at best, neutral as to whose conduct in connection with the claimant procuring his refugee status constituted an immigration scandal. I do not accept that this is a case where the Chief Justice’s observations in Drummoyne Municipal Council v Australian Broadcasting Corporation can be prayed in aid. The conclusion that imputation 5(a) does not plead an act or condition of the claimant is not an exercise in philology but ordinary grammar. Imputation 5(a) bears no resemblance to that saved in Drummoyne Municipal Council v Australian Broadcasting Corporation by considerations of practical justice.
73 In the light of this conclusion it is unnecessary to consider the primary judge’s criticism of imputation 5(a) for repeating the matter complained of. I note, however, that the requirement that imputations be “clear and precise” is “often not ... met merely by adopting the language of the matter published”: Feros v West Sydney Radio Pty Ltd (Court of Appeal, 22 June 1982, unreported) per Samuels JA (with whom Moffitt P and Reynolds JA agreed) at p 6. The authorities critical of pleading imputations in the terms of the matter complained of were collected and discussed in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [118] ff by Hunt AJA (with whom Santow JA agreed).
74 In my view the primary judge did not err in striking out imputation 5(a).
Imputation 5(e): the plaintiff probably used corrupt means to obtain his refugee status in Australia
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.”
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.
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.
Imputation 5(f): the plaintiff is dishonestly drawing social security benefits in Australia
The primary judge’s reasons
87 His Honour noting that imputation 5(f) also relied upon paragraph [90] of the second matter complained of. He recorded the claimant’s submission that the description of him “as a corrupt former Prime Minister of Bangladesh sentenced to many years of imprisonment in absentia is sufficient to imply or support the inference that he is guilty of dishonesty in drawing social security benefits”.
88 His Honour held that such a conclusion was not reasonably open to the reader for the same reasons for which he had rejected imputations 5(e) and 5(g), adding that it was not reasonably open to the reader to whom it was made plain that an investigation had not yet commenced and no finding had been made and who took account of the earlier segments which made no adverse criticism of the claimant’s conduct in obtaining asylum in Australia. Accordingly, he concluded that the second matter complained was incapable of carrying imputation 5(f).
Imputation 5(f): submissions on appeal
89 Mr Campbell argued that imputation 5(f) was conveyed because the second matter complained of “dragged in scandal with revelations that a corrupt former prime minister of Bangladesh had been granted refugee status here, and was drawing social security”.
90 Mr Lancaster argued that the second matter complained of did not suggest that the claimant’s receipt of social security benefits involved dishonesty on his part.
Imputation 5(f): consideration
91 Unlike the first matter complained of, the second matter complained of does not link the claimant’s receipt of social security benefits to his refugee status. The suggestion that the circumstances in which he obtained his visa were questionable is faintly made (paras [4]–[6]), explained as political victimisation (paras [1], [5]) and found to have been “politically motivated” (para [7]) although warranting prime ministerial investigation (para [92]).
92 Although I have accepted the article is critical of the claimant in relation to him obtaining his refugee status, the criticism is not of dishonesty but probable corruption or impropriety (imputations 5(e) and (g). In my view a reasonable reader would not read the second matter complained of in the sense for which the claimant contends in imputation 5(f).
Leave to appeal
93 The claimant needed leave to appeal to challenge the primary judge’s decision in relation to the imputations because the question whether the matters complained of were capable of carrying the pleaded imputations was determined in a Pt 31 r 2 separate trial. An appeal from a decision in proceedings ordered to be decided separately lies only by leave: Supreme Court Act 1970, s 103.
94 The claimant submitted leave to appeal should be granted to challenge the rulings on the imputations because they are his cause of action (s 9, Defamation Act) so that the primary judge’s decision affects his substantive rights.
95 I accept the claimant’s submissions. He will suffer a substantial injustice if not given leave to appeal: see In re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323. Leave to appeal should be granted to the claimant to challenge the orders striking out his imputations.
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.
Reasons
102 Finally, I would observe that it is regrettable if a practice has developed in the Defamation List on applications to strike out a plaintiff’s imputations that reasons are not given unless sought. I do not need to canvass the principles concerning a party’s entitlement to reasons. Striking out any of a plaintiff’s imputations goes to the heart of a defamation action at least as long as s 9 of the Defamation Act dictates that the imputation is the cause of action. Although courts may once have shied away from declaring it “a universal rule that a judge is bound upon request to give reasons for his decision” (Brittingham v Williams [1932] VLR 237 referred to in Pettitt v Dunkley [1971] 1 NSWLR 376 at 380), the time has long passed when, if ever, it was incumbent upon parties to ask for reasons. It is accepted that adequacy of reasons lies at the heart of the judicial process. A judge is obliged to expose the reasons for resolving a point critical to the contest between the parties, to enable the parties to identify the basis of his or her decision and the extent to which their arguments had been understood and accepted: North Sydney Council v Lygon (1995) 87 LGERA 435 at 442 per Kirby ACJ; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 270 per Mahoney JA, at 279 per McHugh JA.
Orders
103 The claimant has been substantially successful on appeal. Eight out of the ten causes of action in dispute have been restored, however his attempt to challenge the striking out of his particulars of aggravated damages has failed. In my view the appropriate costs order should be that the opponent should pay the costs of the appeal relating to the imputations and the claimant should pay the costs of the application for leave to appeal from the striking out of the particulars.
104 I would make the following orders:
(1) Grant leave to appeal from the decision of Nicholas J of 1 October 2004.
(2) Notice of appeal to be filed in seven days.
(3) Allow the appeal as to imputations 3(d), (e), (g), (h) (i) and (m) and 5(e) and (g).
(4) Respondent to pay the costs of the appeal.
(5) Refuse leave to appeal in respect of Nicholas J’s orders of 22 November 2004 striking out the particulars of aggravated damages.
(6) Claimant to pay the costs of the application for leave to appeal from the order striking out of the particulars of aggravated damages.
Schedule A
[1] Australia welcomes corrupt Bangladeshi PM who stole his people’s food
Cynthia Banham and Mark Riley
Photograph of plaintiff – captioned [“Kazi Azar Ahmed ... living in Sydney on a disability pension”]
[2] A corrupt former prime minister of Bangladesh, convicted of stealing food from his flood-ravaged people and selling it, has been granted refugee status by the Howard Government.
[3] Kazi Zafar Ahmed is living in Sydney with his family and drawing a disability support pension. Known in Bangladesh as "Sugar Zafar" because of his alleged role in the hijacking of a multi-million-dollar aid shipment of sugar, he was sentenced to 15 years' jail in absentia on corruption charges by a Dhaka court in November 1999.
[4] The Herald has learnt that he fled to Australia two months before the sentence was handed down. It is understood that Ahmed was granted a refugee visa by the Immigration Department, and that the Immigration Minister, Philip Ruddock, had no personal involvement.
[5] Mr Ruddock would not comment last night on Ahmed's case. However, his spokesman said that while a criminal record would be taken into account in assessing a refugee application, it did not "automatically exclude" that person from being granted a visa.
[6] "If someone is given a refugee visa it's on the grounds of a well-founded fear of persecution for [refugee] convention related reasons, including political opinion," he said.
[7] Ahmed settled with his family in Lakemba in 1999 and recently moved to a new address in Sydney's south. He has made at least two return visits to Bangladesh since coming to Australia. On one of these trips he was reported in the Bangladesh media as having resumed leadership of the Jatiya political party.
[8] His 15-year sentence was over the misappropriation of large quantities of wheat and rice from a food-for-work program for the poor.
[9] The Dhaka court heard that as prime minister in 1989 Ahmed had allocated the grain for workers on a landfill site where his government planned to build a cancer hospital. However, the supplies were later sold on the black market.
[10] Ahmed has also been implicated in the theft and sale of millions of dollars of sugar donated for flood and disaster relief in his country.
[11] He returned to Bangladesh in 2001 and was arrested, but was released on bail after lodging a High Court appeal against his sentence. He was also granted bail in four other corruption cases against him, including one involving the sugar shipments.
Continued Page 4
From Page 1
[12] Safe haven for corrupt Bangladeshi PM
[13] Ahmed was taken to a Dhaka hospital in 2002 with a kidney complaint. Soon after, he returned to Australia to live with a daughter who had settled in Sydney.
[14] The Herald understands he is receiving the disability pension because of his kidney condition.
[15] New migrants have to wait 10 years until they can draw disability payments, where their affliction occurred before arrival. But permanent refugees are entitled to the pension immediately on being granted a visa.
[16] Ahmed is believed to now live with his wife and one of his two daughters. He would be entitled to a welfare payment of about $370 a fortnight. His wife would be entitled to a partner allowance of about $340 a fortnight.
[17] A spokesman for the Family and Community Services Minister, Amanda Vanstone, said yesterday that privacy laws prevented disclosure of details about individual cases unless the person involved agreed. Centrelink investigated all allegations of people drawing entitlements outside the law.
[18] Ahmed entered public life in the pre-independence turmoil of Bangladesh in the 1960s as a Maoist leader who attracted a large following. He held several portfolios through the 1980s before being appointed prime minister by the then President Hossain Mohammad Ershad in 1989.
[19] Ahmed was forced to flee to India in late 1990 following a year of uproar that forced General Ershad's resignation. The general served a sentence for corruption and is now an MP.
Schedule B
[1] PM a ‘political victim’
[photograph of plaintiff]
[2] The Immigration Minister, Philip Ruddock, may overhaul the visa system to stop immigration advocates coming to him – to combat claims that he is being pressured to intervene in rejected cases. Mr Ruddock has also defended his department’s decision to grant asylum to Bangladesh’s former prime minister, Kazi Zafar Ahmed despite his conviction on corruption charges. The department found the charges were politically motivated, as Ahmed insisted when he spoke out yesterday. Page 9
From Page 9
[3] Visa scandals: Ruddock may freeze out advocates
Mark Riley, Political Correspondent
[4] My life was in danger: former PM denies corruption charges
[5] A former Bangladeshi prime minister claims he was “politically victimised” over corruption charges and insists he was granted asylum in Australia because his life was in danger.
[6] The Immigration Minister, Philip Ruddock, also defended his department’s decision on Kazi Zafar Ahmed, after the Herald revealed he had been allowed to stay in Australia despite being sentenced in 1999 to 15 years’ jail for misappropriating wheat and rice from a Bangladeshi food-for-work program for the poor.
[7] Mr Ruddock said Ahmed had disclosed his conviction and the immigration Department had found the sentence to have been politically motivated. When the Herald contacted Ahmed through his lawyer yesterday he refused to be interviewed. However he told ABC radio that the department “found my statement to be correct. My life was in danger and I could not get justice”.
[8] It was not uncommon for Bangladeshi governments to use the courts against political opponents. “I was a very important political person,” he said.
[9] The Immigration Minister, Philip Ruddock, is considering a major overhaul of the visa system to combat claims that he is being improperly pressured to intervene in rejected cases.
[10] It would stop the long-held practice of advocates bringing failed cases to Mr Ruddock for reconsideration. It would also prevent people such as church leaders, community representatives and migration agents from approaching Mr Ruddock on behalf of visa claimants.
[11] The practice of ministerial intervention has sparked a growing controversy after revelations that Mr Ruddock exercised his discretion to overrule his department in the cases of two men who had made donations to the Liberal Party.
[12] The immigration laws give the minister unfettered discretion to grant visas in failed cases by overruling the decisions of his department and the relevant tribunals.
[13] But the minister refusing to meet visa applicants' supporters would be met with outrage from immigration advocates, particularly those who represent visa applicants from non-English speaking backgrounds. Advocates take cases to the minister because the applicant has neither the necessary command of the language nor understanding of the intricate immigration system to promote their own arguments effectively.
[14] One of the two Liberal donors, Dante Tan, gave $10,000 to Mr Ruddock's Berowra electorate re-election campaign around the time the minister intervened in his case to reinstate his business migration visa. Tan fled the country last week after the Herald exposed him as the Philippines' most-wanted corporate fugitive.
[15] The other man, Bedweny Hbeiche, was granted a protection visa because of Mr Ruddock's intervention after the minister had declined on two earlier occasions to exercise his discretion in the case. Labor revealed in Parliament last month that a $3000 donation was made to the Liberal Party on Mr Hbeiche's behalf at the time his case was being considered.
[16] In both cases, representations were made to Mr Ruddock by people unofficially acting on behalf of the men. In Mr Tan's case, it was a Lebanese community member who has known Mr Ruddock for many years, Karim Kisrwani. It was a bishop from the Melkite Church, Issam Darwish, for Mr Hbeiche's case. Mr Ruddock, told the Herald, that Labor attacks on the cases had left an impression that third parties were exerting undue influence on him.
[17] "I don't know if I should make changes in the heat of an attack to restrict people's access, but I am conscious that the issues being raised are being distorted," Mr Ruddock said. "Instead of MPs writing to me, or church leaders or community representatives or others, I might have to invite the people to put their own case without second-party assistance."
Friends in high places - Page 25
[18] Friends in high places
[19] The emotion-charged politics of migration are fraught with danger - especially when crooks make big donations to your party. Mark Riley follows the money.
[20] TWO federal ministers, an ambitious MP, an international corporate fugitive and a big sack of money went sailing on Sydney Harbour on a sunny day last December. It sounds like a synopsis for a political potboiler - but it really happened.
[21] The Liberal politicians involved emphatically maintain it was all above board. Nothing improper or indecorous went on below the Plimsoll line.
[22] It was just one of many party fund-raisers they attended throughout the year, say the Workplace Relations Minister, Tony Abbott, the Assistant Treasurer, Helen Coonan, and the MP whose campaign coffers benefited from the day, the Member for Parramatta, Ross Cameron.
[23] But this was not just another fund-raiser - unless Liberal functions are routinely attended by a multibillion-dollar corporate fugitive wanted for massive market manipulation that brought down a government and caused the near collapse of a national stock exchange.
[24] Dante Tan, Philippine carpetbagger, corporate fraudster and political manipulator par excellence, does not exactly fit the standard profile of the average Liberal Party donor. But a donor he was. To just what extent is not yet clear. What is clear is that he gave $10,000 to the re-election campaign of the Immigration Minister, Philip Ruddock, at a time when Tan's application for Australian citizenship was being questioned by Ruddock's department.
[25] Tan eventually won his citizenship. It is now known if he did it on fraudulent grounds. He somehow overlooked declaring he was on the run from the Philippine authorities after masterminding the largest corporate fraud in that country's colourful history.
[26] It is now known that he won his citizenship with the help of his local member - Ross Cameron, the same politician who benefited from the campaign cruise that day on the harbour.
[27] It is also known that the Immigration Department cancelled Tan's business migration visa in 2001, but that it was restored after the personal ministerial intervention of Ruddock.
[28] THE colourful world of immigration politics has long been mired in allegations of influence peddling, political favouritism and outright corruption. The very nature of the process dictates that it will be a messy business. Immigration is unlike a lot of other areas of public administration in that it deals with the depths of human needs and desires, adjudicating on families' cases for entry to Australia and the opportunity of a new and better life.
[29] It is a highly emotive and highly volatile process, one that commands as much as 60 or 70 per cent of the workload of MPs in electorates with many constituents from immigrant families. And it 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.
[30] Dante Tan ... a $10,000 donation to the Liberal’s was nothing for one of the Philippines’ most wanted men.
[31] The most celebrated recent case of corruption led to the jailing last year of a former ALP backbencher, Andrew Theophanous, on bribery and conspiracy charges for abusing his position to accept money and seek sexual favours in return for his assistance in immigration cases.
[32] The tendency for immigration scandals to create a greater blight on the character of a government is why so many Howard ministers and MPs now wish they had never heard the name Dante Tan.
[33] Cameron has refused to say how much money went into his fundraising sack during the voyage. But he has been insistent in his denials that Tan had contributed. "Dante Tan didn't make a donation," he told the Herald this week. "He was present. But I didn't ask him for a donation and he didn't make a donation. I can tell you that over the time I've known him, I've never accepted a donation from him."
[34] However, the Herald reports today that Cameron did accept a $2000 campaign donation from Tan's lawyer, Anthony Torbey, a Lebanese community leader from Brisbane. Torbey's contribution was registered with the Australian Electoral Commission this week among a long list of amendments lodged by the NSW branch of the Liberal Party.
[35] Among them was an amount of $10,130 donated by Kisrwani Enterprises, a company operated by a prominent figure in the western Sydney Lebanese community, Karim Kisrwani.
[36] Australian Securities and Investments Commission searches show that Tan and Kisrwani share directorships of two Australian companies.
[37] It was Kisrwani who introduced Tan to Cameron and Ruddock, and it was he who organised a fundraising dinner at Romeo's restaurant in Parramatta in 2001 that Tan attended. Tony Abbott was also at that function, but says he cannot remember meeting Tan there. Ruddock concedes he was at the dinner but similarly says he can't recall talking to Tan. The function raised $22,000 for the Liberal Party.
[38] Torbey said yesterday he had acted on Tan's behalf in a deal to establish a business importing tyres from China to a distribution centre in Brisbane. The plan was to sell tyres up and down the east coast, specialising at first in trucks but moving gradually into the lucrative family car tyre business.
[39] The solicitor said he had met Cameron several times at Lebanese community functions. Cameron has a large Lebanese presence in his electorate.
[40] However, Torbey said client confidentiality restrictions prevented him from making any comment about his relationship with Tan.
[41] "The last thing I heard he was living in Sydney," Torbey said.
[42] But Tan no longer lives in Sydney. He skipped the country 10 days ago, the day after the Herald revealed his identity as a corporate fugitive and Liberal Party donor in a front page story.
[43] Tan came to Australia as a business migrant in 1998, but had his visa revoked by the Immigration Department in September 2001 when it could not locate him at the address he had registered.
[44] Ruddock has admitted to the Parliament that he intervened in the case to reverse his department's decision and renew Tan's business migration visa. He said he had done so after being approached on Tan's behalf by Kisrwani.
[45] Kisrwani is a self-styled migration advocate who has made dozens of representations to both sides of politics on behalf of visa applicants. He boasts of a close relationship with Ruddock, although the minister has moved decisively to put some considerable space between them since the Tan controversy erupted.
[46] Ruddock's intervention in Tan's case came shortly after the $10,000 cheque from Tan, registered at Kisrwani's business address, appeared in his electorate campaign fund. Ruddock has told Parliament he had no knowledge of the donation being made.
[47] The department had questions again when Tan applied for citizenship last year. Regulations require that applicants spend two years in the country after being granted residency before they can be made citizens.
[48] But Tan had spent long periods out of the country in the two years preceding his application. The department normally deducts the time an applicant has spent out of the country from their qualification period.
[49] [Against the caption ([30]) was a photograph of man, presumably Dante Tan, over which was superimposed what appeared to be an open passport with the Liberal Party emblem stamped on the left hand page and words which include “Immigration” on the right hand side; overlain again by a number of $50 bank notes]
Continued page 34
[50] The dirt on Dante
[51] The saga of the fugitive Dante Tan raises serious questions about what Australia knew - and why it didn't alert the Philippines. Craig Skehan reports.
[52] Dante Tan - 53 years old, clean-shaven, immaculately dressed and very rich - had an effective modus operandi in the Philippines that combined ethnic Chinese community networking with political connections and bribery. It was a world of secret bank accounts, late night parties, mistresses, high stakes casino gambling, tumblers of blue label Scotch whisky and deals worked out in smoke-filled back rooms.
[53] Tan became one of "Erap's cronies". Erap - a nickname formed by a play on the Filipino word for "buddy" - is Joseph Estrada, the former action movie hero accused of engaging in massive corruption after being elected to the country's presidency in 1998. Ousted from office in January 2001 amid public protests, Estrada is on trial for allegedly receiving more than $US77 million ($116 million) from pay-offs and illegal investments.
[54] Some of Estrada's cronies and associates ratted to investigators about secret deliveries of cash to the man who became president by exploiting his actor's reputation as a defender of the poor. Others are awaiting extradition to the Philippines to appear as co-accused at his corruption trial, or - like Dante Tan - are still on the run from authorities.
[55] Shortly after Estrada came to power, Tan's BW Resources group won a lucrative government licence to operate online bingo, as well as introduce a new legal numbers game very similar to a widely patronised illegal game called jueteng. The head of the government gambling industry regulator, Pagcor, later told a Congressional hearing into corruption allegations against Estrada that the online bingo licence application from Tan "had the endorsement of the office of the President".
[57] Over eight months from January 1999, the share price of BW Resources rocketed from 2 pesos to 107 pesos.
[58] However, the shares crashed after it was announced that the Macau casino boss, Stanley Ho, had been elected company chairman. This was despite public statements from Estrada denying claims that Ho was linked to organised crime.
[59] Tan was indicted for stock manipulation and insider trading in December 2000, and about this time he apparently left the Philippines for Australia by ship, without having his passport stamped on departure.
[60] But before leaving, Tan said in a radio interview that he had paid tens of thousands of dollars in bribes in a bid to be cleared by regulators of charges of fraud and manipulating BW Resources stock.
[61] According to well-placed sources, it was widely known among immigration staff as well as diplomats at the Australian Embassy in Manila that Dante Tan was the crony of Estrada at the centre of the BW scandal and that Tan had been regularly travelling to Australia. It is not clear why Australian authorities failed to tip off Philippine Justice Department officials about the Australian connection when Tan was indicted and fled.
[62] The Justice Department learned only last Tuesday, from a report in the Herald, that Tan was living in Sydney, having secured his Australian citizenship following a $10,000 donation to the election campaign of the Immigration Minister, Philip Ruddock.
[63] The Australian Government is under fire for allowing Tan to fly out of Sydney the following day, knowing that the Philippines was urgently preparing an extradition request. No effort was made to suspend or revoke Tan's passport, even though it was more or less conceded by Ruddock that Tan had falsely stated he was not facing criminal charges in his homeland.
[64] In front-page stories in the Philippines - and reports carried internationally - Tan was described by the Justice Department as the country's most-wanted corporate fugitive.
[65] MURKY aspects of the BW scandal have yet to be fully probed, including an ongoing investigation into the murder of a man, Salvador "Bubby" Dacer, who worked for BW Resources.
[66] Another company granted a gambling licence by the Estrada administration was Power Management and Consultancy (PMC) Inc, owned by a close associate of Estrada, Charlie "Atong" Ang.
[67] A former provincial governor who was involved in illegal gambling, he later alleged on oath that PMC was really a front corporation for Estrada.
[68] In November last year, Ang was arrested in Los Vegas and now awaits an extradition hearing aimed at returning him to the Philippines as a co-accused in the Estrada corruption trial.
[69] Still on the run in the US, and facing extradition to Manila, is Yolanda Ricaforte, described in an FBI "wanted list" as the person who "allegedly audited the collection and disbursement" of illegal pay-offs to Estrada. The Philippine Justice Department officials seeking to have Ang and Ricaforte extradited for trial are also trying to find Tan.
[70] Among the Estrada clique, there was a pattern of campaign donations to curry favour. Tan was known to have been a big contributor to Estrada's glitzy 1998 presidential campaign.
[71] And a formerly close friend of Dante Tan, fellow Estrada crony Mark Jimenez, is due to face trial within weeks in the US on charges that he made large illegal donations to the 1996 election campaign of the former US president, Bill Clinton.
[72] It has been alleged that one donation to Clinton's campaign for $US50,000 was made soon after Jimenez was invited to have coffee at the White House.
[73] Meanwhile, questions remain about Tan's ability to travel freely to and from Australia, his $10,000 donation to Ruddock's campaign and his hasty departure from Sydney.
[74] [Photograph of man holding cheque captioned]
[75] Dante Tan, in 2001, shows a 1 million peso ($28,000) cheque he says was a bribe to clear him of price-fixing allegations.
[76] FRIENDS IN HIGH PLACES
From Page 25
[77] However, Cameron admitted this week that he intervened on Tan's behalf with the department and argued for him to be given dispensation under a regulation that says periods overseas can be counted as part of the qualifying period if they were spent conducting business that was in Australia's national interest.
[78] Cameron said Tan had convinced him that his business trips satisfied that criterion, although it is now known that Tan spent at least some of that time in the Philippines unsuccessfully trying to bribe his way out of the corporate fraud charges.
[79] Cameron said he had treated Tan as he would any constituent and that he did not have any knowledge at that time of Tan's background.
[80] It was Cameron who presided over the citizenship ceremony at which Tan officially became an Australian in May last year.
[81] RUDDOCK said last week that he regretted the fact that Tan had been able to manipulate the immigration system and continue his three-year flight from justice. "It is a concern that a man of this character was able to bypass our mechanisms," Ruddock said. "I regret that, and I will continue to look into how we might improve the system."
[82] The vice-president of the Australia Philippines Business Council, Clive Troy, said last week that it was "unbelievable that Philip Ruddock's Immigration Department office only conducted cursory checks and failed to discover the past history of the very high-profile Dante Tan in Manila . . . when assessing his formal application for citizenship".
[83] Troy described Australia's immigration office in the Philippines as "known for its slowcoach nitpicking" and "bureaucratic bog, insensitivity, harshness and extremely high rejection rate of visa applications".
[84] "How convenient the financially influential Dante Tan squeezed through the fine-tooth comb process," Troy said.
[85] Now, Tan has squeezed through the process again, this time with considerable ease. Tan flew out of Sydney 10 days ago. There was no alert for his detention at the border. He sauntered through with his passport duly stamped by Immigration officials.
[86] Ruddock defended his department's actions. He said there was no basis to stop Tan because the Philippines hadn't lodged an extradition request with Australia and there was no domestic or Interpol alert out for his arrest. "I am interested that some people believe that you ought to be able to hold people at whim," Ruddock said.
[87] "The only basis on which people can be held on an offence here in Australia is if certain charges have been brought. It is no surprise that if Mr Tan was seeking to avoid possible extradition, that he might depart and the difficulty is there is no law which would enable us to hold him."
[88] I am interested that some people believe that you ought to be able to hold people at whim.
[89] Tan is believed to have headed to Singapore but then left soon after for Europe. His precise whereabouts remain unknown, but the controversy he left behind is growing larger with each day.
[90] 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.
[91] 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.
[92] 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.
[93] That is the other thing that sets Immigration apart from the other portfolios - when the scandals come, they seem to just keep coming.
105 BASTEN JA: This case involves a serious attack on the character of a former Bangladeshi Prime Minister, who had obtained a protection visa, provided for by s 36 of the Migration Act 1958 (Cth). The principles of law, pursuant to which protection visas are granted (and were granted in 1999) may seem arcane, to the ‘ordinary reasonable reader’. There is a question as to whether a publisher can benefit from assumed ignorance of general knowledge of the law on the part of such readers: in my view, it cannot.
106 For this purpose, there are two matters to bear in mind. First, it is necessary to apply the language of the statutory provision, namely s 7A of the Defamation Act 1974 (NSW) which, relevantly for present purposes provides:
“7A Functions of judge and jury
(1) If proceedings for defamation are tried before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and, if it is, whether the imputation is reasonably capable of bearing a defamatory meaning.”
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.”
In reference to the last sentence, the Court referred to the defamation case of Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (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.”
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:
(a) a person from another country is not entitled to a protection visa unless he or she can demonstrate a well-founded fear of persecution in his or her country of nationality;
(b) not all bases of such a fear are sufficient, but one relevant ground is “political opinion”;
(c) “persecution” involves the infliction of serious harm, or at least a threat thereof;
(d) although the imposition of a period of imprisonment, or other serious criminal penalty, may involve such harm, it does not constitute persecution if it results from legitimate prosecution for an alleged criminal offence;
(e) not all prosecutions are legitimate, however: prosecution of an opponent of the government on trumped-up charges may constitute persecution on the ground of political opinion;
(f) an applicant will not obtain a protection visa unless he or she can satisfy the appropriate immigration officer that he or she holds a fear of persecution and that the fear is real, in an objective sense;
(g) the feared persecution need not be inevitable, but there must be a real chance that it will eventuate if the person is returned to his or her country of nationality, and
(h) a person who voluntarily returns to his or her country of nationality, even if only temporarily, is unlikely to have a genuine fear of persecution in that country.
118 It is helpful to identify expressly such relevant background information in order to assess the strength or weakness of the imputations pleaded. Thus, for example, in dealing with the question of voluntary return at [22] of his Honour’s judgment, in a passage set out by McColl JA at [45] above, I do not think his Honour had regard to the last proposition. If it were not accepted as an appropriate assumption in relation to the ordinary reasonable reader, that point would need to be explained. However, bearing it in mind, I would draw the conclusion reached by McColl JA at [50].
119 Similarly, in order to judge the availability of other imputations, it is necessary to take account of the distinction between persecution and legitimate prosecution and to note that persecution may include politically motivated prosecution. It may be argued that such distinctions would not clearly be drawn by ordinary readers. However, as explained above, if a publisher is not immune from suit because the hypothetical reader may be ill-informed or may reason loosely, it should certainly not be immune with respect to an imputation which could properly be drawn by a well-informed reader reasoning carefully.
120
Subject to these additional comments, I agree with the reasons given by McColl JA, and with the orders she proposes.
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LAST UPDATED: 14/02/2006
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