Rakhimov v Australian Broadcasting Corporation & Anor [2001] NSWSC 693

New South Wales Supreme Court

CITATION : Rakhimov v Australian Broadcasting Corporation & Anor [2001] NSWSC 693 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20492/00 HEARING DATE(S) : 31 July 2001 - 1 August 2001 JUDGMENT DATE : 1 August 2001

PARTIES : Gafur Rakhimov v Australian Broadcasting Corporation and Andrew Jennings JUDGMENT OF : Michael Grove J at 1

T. Hughes QC with M. Richardson (Plaintiff) COUNSEL : T. Tobin QC with T. Blackburn (First Defendant) R. McColl SC with N. Obrart (Second Defendant) Gilbert & Tobin (Plaintiff) SOLICITORS : Judith Walker (First Defendant) Minter Ellison (Second Defendant) CATCHWORDS : DEFAMATION - TRIAL OF LIMITED ISSUES PURSUANT TO DEFAMATION ACT s7A - DIRECTIONS - ADDRESS DECISION : Interlocutory Ruling

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Wednesday 1 August 2001

20492/00 - GAFUR RAKHIMOV v AUSTRALIAN BROADCASTING CORPORATION & ANOR

JUDGMENT (see page 8 of transcript 1 August 2001)

1 HIS HONOUR : At the close of the three addresses which occurred shortly before 4 o'clock yesterday afternoon, application was foreshadowed and has been heard this morning that I give certain directions to the jury arising out of the addresses by counsel for the respective defendants. It should be noted that at the commencement of proceedings I declined an application by senior counsel for the plaintiff in relation to the order of address but reserved to him the right to renew his application in the light of events as they turned out, and, in particular, an application that he have a right of reply to the addresses. That application is pursued in the sense that it is alternative to the application now made that I give some specific directions to the jury. 2 The directions sought by Mr Hughes on behalf of the plaintiff have been reduced to writing and they may remain with the papers and I will not take the time now, while the jury is waiting outside, by repeating what can be read there. I do propose to give some additional directions in relation to matters raised during the respective addresses of counsel but not in the terms precisely specified by Mr Hughes. It seems to me that the most practical course is for me to embark upon my directions to the jury and at the conclusion there will be the usual opportunity for counsel to make submissions for withdrawal or amendments as the case may be. 3 There is one matter specifically, however, that I should mention, that is in the course of address by Mr Tobin QC, for the first defendant, there was reference to the knowledge of the ordinary reasonable viewer that the FBI had had Martin Luther King under surveillance. Mr Tobin says that he has checked the website last night. 4 Given the context of the entire address it seems to me that the reference to the late Mr King is something that does not contain the vice complained of by the plaintiff and I propose to let Mr King rest in peace. 5 In those circumstances, I propose to have the jury brought back and I will embark upon my directions to them. 6 HUGHES: I take it, your Honour is declining my alternative application? 7 HIS HONOUR: Yes, I thought that was clear enough. That can be recorded so you are protected. 8 Mr Hughes has reminded I did not specifically say I had refused his alternative application, I consider there is a great deal of force in the complaint which is made that in these particular trials a plaintiff is placed in a disadvantaged position having to address first and anticipate anything that might be said on behalf of various defendants and I consider there is a great deal to be said for the notion that an address in reply or an alteration of the order of address might be considered. However, as I said yesterday, I think it desirable that I maintain comity with other judges who have taken the view the ordinary course set out in the rules should be followed. 9 In a case such as the present I think I should record that I find myself in something of a dilemma in the sense there are, in my view, matters which should be the subject of reference arising out of the addresses by counsel for the defendants and there is the risk that it might be thought or said that any correction being made by a judge in some way lends the authority of office to what is being said and I propose to do as much as I can to avoid any such impression being offered to the jury. I do not propose to accede to Mr Hughes' alternative application that he have a right of reply to the addresses of his opponents. 10 That covers the entire matter Mr Hughes. If it needs to be looked at elsewhere, so be it. **********