Kazal v Fairfax Media Publications Pty Limited [2015] NSWSC 1336

Supreme Court New South Wales

Medium Neutral Citation: Kazal v Fairfax Media Publications Pty Limited [2015] NSWSC 1336 Hearing dates: 11 September 2015 Decision date: 11 September 2015 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph [28] Catchwords: PRACTICE AND PROCEDURE – pleadings – defamation proceedings - application for leave to amend statement of claim - objections taken to form and capacity of proposed imputations – whether word "corruptly" makes proposed imputations bad in form Cases Cited: Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 Texts Cited: Russell on Crime, 12th ed, 1964 Category: Procedural and other rulings Parties: Oscar Kazal (Plaintiff) Fairfax Media Publications Pty Limited (First Defendant) Fairfax Digital Australia & New Zealand Pty Limited (Second Defendant) Linton Besser (Third Defendant) Kate McClymont (Fourth Defendant) Representation: Counsel: Mr B R McClintock SC/Mr J B Kay Hoyle (Plaintiff) Mr T Blackburn SC/ Mr M A Polden (Defendants)

Solicitors: Somerset Ryckmans (Plaintiff) Banki Haddock Fiora (Defendants) File Number(s): 2014/82498

Judgment

Introduction 1. The plaintiff, Oscar Kazal, commenced proceedings for damages for defamation arising out of publications by the defendants in March 2013 (the Sixth Matter Complained Of) and May 2013 (the Seventh and Eight Matters Complained Of). The publications, headed "Bad Company", concerned members of the Kazal family, including the plaintiff, and their relationship with John David, a business man who was, for a time, incarcerated in the United Arab Emirates, having previously been associated in business ventures with the Kazal family in Australia. The publications also purport to document the way in which the Kazal family does business and explain their evident success by reference to the means adopted by them, including by currying favour with politicians. 2. There is an issue, which need not be resolved for present purposes, whether the publication was solely online (for which the second defendant was responsible), or whether there was also a print version (for which the first defendant was responsible). The journalists, Linton Besser (the third defendant) and Kate McClymont (the fourth defendant), are also parties. 3. The plaintiff sought leave to amend his statement of claim. The draft version, which was marked "MFI1", was the subject of objections from the defendants, the scope of which narrowed in the course of the hearing.