Rakhimov v Jennings & Anor [2001] NSWSC 12

New South Wales Supreme Court

CITATION : Rakhimov v Jennings & Anor [2001] NSWSC 12 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20493 of 2000 HEARING DATE(S) : 12 December 2000 JUDGMENT DATE : 25 January 2001

GAFUR RAKHIMOV (Plaintiff)

v

PARTIES : ANDREW JENNINGS (First Defendant)

SIMON AND SCHUSTER (AUSTRALIA) PTY LTD ACN 000 945 380 (Second Defendant) JUDGMENT OF : Levine J

B McClintock S.C. (Plaintiff) COUNSEL : J S Wheelhouse (Defendants) Gilbert & Tobin (Plaintiff) SOLICITORS : Minter Ellison (Defendants) CATCHWORDS : Imputations - capacity - form CASES CITED : Rakhimov v John Fairfax & Sons Limited & Anor [2001] NSWSC 11 DECISION : See paragraph 12

DLJ: 1 [2001] NSWSC 12

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20493 of 2000

JUSTICE DAVID LEVINE

THURSDAY 25 JANUARY 2001

GAFUR RAKHIMOV (Plaintiff)

v

ANDREW JENNINGS (First Defendant)

SIMON AND SCHUSTER (AUSTRALIA) PTY LTD ACN 000 945 380 (Second Defendant)

JUDGMENT (Imputations - capacity - form) 1 The plaintiff sues the defendants in respect of the publication by them of the book entitled "The Great Olympic Swindle". The first defendant is the author of the book and the second defendant is the publisher in Australia. 2 Reliance is placed upon the book in its entirety but in particular upon the words appended hereto which are set out as extracts and attached to the Further Amended Statement of Claim filed on 8 December 2000 by leave. 3 The imputations pleaded by the plaintiff are as follows: "4(a) The plaintiff is a major international drug dealer; (b) The plaintiff is a leader of a syndicate of international drug dealers; (c) The plaintiff smuggles heroin and cocaine; (d) The plaintiff is so evil and destructive a criminal as to pose a grave threat to the public safety of France and the French people; (e) The plaintiff is a criminal who engages in drug dealing, fraud, prostitution, assassination, extortion, gun running and plutonium smuggling. (f) The plaintiff bribed members of the International Amateur Boxing Federation to vote for him to be a member of the executive committee of the International Amateur Boxing Federation. (g) The plaintiff is a gangster in the Soviet black economy; (h) The plaintiff is a person prepared to influence the results of Olympic events so that medals therefore would not be awarded on merit; (i) The plaintiff has subverted the Olympic ideal by trading medals for bribes". 4 As I have ruled in Rakhimov v John Fairfax & Sons Limited & Anor [2001] NSWSC 11 imputations 4(a) to (c) do not differ in substance. They will be struck out with leave to re-plead. Imputation 4(d) will not be struck out but as I said in the Fairfax judgment consideration should be given to its re-wording. In relation to 4(d) I reject the submission that the matter complained of is incapable of carrying an imputation of the plaintiff in fact being a criminal that poses a threat as opposed to being suspected of being one. 5 As to imputation 4(e) for the reasons stated in the Fairfax matter, that imputation is struck out with leave to re-plead. 6 It is submitted in relation to imputations 4(e) and 4(g) in any event that they do not differ in substance. Whilst I have formed the view that an imputation worded as in 4(g) is proper in form and capable of arising, consequentially upon the necessary amendment following from 4(e) the plaintiff may well be confronted with a SCR Pt 67 r 11(3) problem. What the publication is about is the plaintiff being said to be a criminal on a "grand scale". I do not propose however to strike out imputation 4(g). 7 I shall next deal with imputation 4(h) and 4(i). It is contended for the defendants that these imputations do not differ in substance. Frankly I do not see how it could be argued otherwise. Certainly there is material in the matter complained of and the selected extracts referred to that point to medals not being awarded on merit but by reason of other factors. That such other factors includes bribes is capable of arising but the two imputations in question on any fair reading of them are really stating the same thing. Imputations 4(h) and 4(i) will be struck out with leave to re-plead. 8 I turn now to imputation 4(f). Whatever precisely it means I am not persuaded that it does not differ in substance from 4(h) and 4(i). The real issue in relation to 4(f) is capacity and pursuant to SCR Pt 31 r 2 was strenuously argued. 9 I have read the matter complained of as extracted in the Further Amended Statement of Claim. The simple point is: the matter could only be understood by the ordinary reasonable reader as stating that the bribery was not to have the plaintiff elected but rather Mr Chowdhry. I have read the matter complained of. I have read the terms of the imputation and have concluded that the matter is incapable of giving rise to a statement to the effect that the plaintiff bribed people to have himself elected a member. There will be a verdict for the defendants in respect of imputation 4(f). 10 The plaintiff will however have leave to re-plead. 11 The defendants have succeeded in the dispute in relation to the imputations and the plaintiff must pay the defendants costs. 12 The formal orders are: