Gatto v Australian Broadcasting Corporation
[2022] VSCA 66
•13 April 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0037
| DOMENIC GATTO | Applicant |
| v | |
| AUSTRALIAN BROADCASTING CORPORATION & ORS (according to the Schedule attached) | Respondents |
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| JUDGES: | BEACH, WALKER and MACAULAY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 March 2022 |
| DATE OF JUDGMENT: | 13 April 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 66 |
| JUDGMENT APPEALED FROM: | [2021] VSC 83 (Keogh J) |
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DEFAMATION – Appeal – Imputations – Whether pleaded imputations conveyed by matter complained of – Single or dominant meaning of matter complained of – Whether trial judge’s conclusions that pleaded meanings not conveyed was affected by specific error – Whether it was open to trial judge to conclude that pleaded imputations were not the single or dominant meaning of the matter complained of – Judge’s conclusions not affected by specific error – No error in judge’s conclusion that pleaded meanings not conveyed – Cruddas v Calvert [2013] EWCA Civ 748, discussed – Hardie v The Herald and Weekly Times Pty Ltd [2015] VSC 364, discussed – Slim v Daily Telegraph Ltd [1968] 2 QB 157, discussed – Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, discussed – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D P Gilbertson QC with Mr D A Klempfner | Lennon Lawyers |
| For the Respondents | Dr M J Collins QC with Mr S Mukerjea | ABC Legal |
BEACH JA
WALKER JA
MACAULAY JA:
On 10 February 2019, the Australian Broadcasting Corporation posted to its website an article (‘the article’) written by two of its employees, Nino Bucci and Sarah Farnsworth, headed ‘Gangland figure Mick Gatto threatened to kill police Informer 3838, court told’. Subsequently, Domenic Gatto (‘the applicant’) commenced a proceeding against the ABC, Mr Bucci and Ms Farnsworth (collectively, ‘the respondents’) alleging he was defamed by the publication of the article.
The applicant’s proceeding was heard over five days in July 2020. At trial, there was no dispute about publication, or that the article was published of and concerning the applicant. The applicant’s case was that the article, in its natural and ordinary meaning, meant and was understood to mean that:
(a)Mr Gatto had threatened to kill the police informer known variously as ‘Informer 3838’ or ‘Lawyer X’;
(b)Mr Gatto is one of Australia’s most violent criminals;
(c)Mr Gatto has been proven to have organised murders in the past;
(d)Mr Gatto was responsible for the murders of Victor Peirce and Frank Benvenuto;
(e)Mr Gatto is a hitman;
(f)Mr Gatto is a murderer;
(g)Mr Gatto plotted to lure Victor Peirce to his death; and
(h)Victor Peirce was killed on Mr Gatto’s orders.
At trial, the respondents contended that none of the applicant’s imputations were conveyed by the article. Additionally, they raised a number of defences, including defences based upon s 4 of the Wrongs Act 1958 and ss 28 and 29 of the Defamation Act 2005.
On 19 March 2021, in accordance with reasons published on 26 February 2021,[1] the trial judge made an order dismissing the applicant’s proceeding. The judge concluded that none of the imputations alleged by the plaintiff were conveyed by the article.[2] In the circumstances, the judge did not determine whether any of the respondent’s defences were made out.[3]
[1]Gatto v Australian Broadcasting Corporation [2021] VSC 83 (‘Reasons’).
[2]Ibid [39], [43], [48].
[3]Ibid [89].
The applicant now seeks leave to appeal from the judge’s order dismissing the applicant’s proceeding. In proposed grounds 1 and 2, the applicant asserts that the judge erred in not finding that imputations (a) to (c) were conveyed. In proposed grounds 3 and 4, the applicant makes the same complaints in respect of imputations (d), (g) and (h). No complaint is made about the judge’s findings that imputations (e) and (f) were not conveyed.
The article
As we have already said, the article (a copy of which is Annexure A of these reasons) was published on the ABC’s website under the heading, ‘Gangland figure Mick Gatto threatened to kill police Informer 3838, court told’. The first paragraph of the article provided:
Underworld figure Mick Gatto threatened to kill a lawyer turned informer if it was ever proven she was speaking to police, according to the confidential evidence of a senior police officer.
The article then referred to statements made by Inspector Brooke Hall in a 2016 affidavit that ‘the informer would “almost certainly” be murdered if her former clients were told by the Office of Public Prosecutions that she had been speaking to police while she acted as their lawyer’. After describing Inspector Hall as, ‘an officer with more than 30 years’ experience’, the article referred to a statement in his affidavit that ‘the risk to Informer 3838 came from “some of Australia’s most notorious and violent criminals who are proven to have organised murders in the past”’. The article then reported the affidavit as stating that ‘Gatto [the applicant], Horty Mokbel — the brother of Tony Mokbel — and others had threatened her [Informer 3838]’, before the article then said:
‘That group specifically stated that if [3838] were found to be a human source then [she] would be killed’.
No further information about how or when the threats were made was included in the affidavit excerpts, which were released in 2017 Supreme Court judgment.
The article contained material published under the subheadings, ‘Gatto’s links to Informer 3838’ and ‘Fears for Informer 3838’s safety’. It also contained statements made in the form of dot points in a margin at the side of the article, and next to the article’s primary text. These dot point statements appeared under headings in the margin, ‘Key points’, ‘Witness B’s allegations’ and ‘Gatto never charged’.
Under the ‘Key points’ margin heading, the article stated, ‘He [the applicant] was accused of orchestrating a hit by a protected witness linked to Informer 3838’ and ‘Some underworld figures believe “crooks” appealing their convictions do not want Informer 3838 dead’.
Under the opening paragraphs of the article and the ‘Key points’ statements to which we have referred, there was a photograph of the applicant, captioned, ‘PHOTO: Mick Gatto is one of the few prominent former clients of Informer 3838’s who is not dead or in prison’. Under the photograph the article then stated:
In a letter to police, Informer 3838 claimed that she was ‘regrettably’ forced to stop her pursuit of Gatto and the Carlton Crew when she was deregistered as an informer in 2009.
The ABC understands these claims relate to evidence implicating Gatto in the murders of Victor Peirce and fruit and vegetable wholesaler Frank Benvenuto during Melbourne’s vicious gangland war.
Three people familiar with the Informer 3838 case confirmed she was taking credit for evidence one of her former clients gave about the murders, but she had never provided information which led to charges being laid against Gatto.
That client, known only as witness B, was arrested by police on serious drug charges after a tip-off by the lawyer.
He subsequently struck a bargain with police to become an informer.
Under the ‘Gatto’s links to Informer 3838’ subheading, the following was published:
The possible involvement of Gatto in the Royal Commission shapes as an intriguing prospect, as he is one of the few prominent former clients of Informer 3838 who is not dead or in prison.
Gatto is one of the great survivors of Melbourne’s underworld.
He beat murder charges over the death of Andrew ‘Benji’ Veniamin, escaped unscathed from multiple plots to kill him … .
…
It was during the murder trial of Vince Benvenuto, the man charged with Victor Peirce’s murder, that allegations of Gatto’s involvement were aired.
Informer 3838’s former client, witness B, told police of contract killings that involved a series of double crosses, which ended in the deaths of Frank Benvenuto and Peirce and the conviction of Faruk Orman.
A list compiled by Informer 3838 to demonstrate her value to police included Orman’s conviction and ‘work in progress’ regarding Gatto and his crew as part of her ten ‘most significant convictions or arrests’.
In the margin of this part of the article, under the margin heading ‘Witness B’s allegations’, the article stated, ‘Gatto subsequently conspired to kill Peirce’ before then stating:
·Peirce was shot dead in 2002
·Witness B said Gatto used Frank’s brother, Vince Benvenuto, as part of a plot to lure Peirce to his death
·Witness B said his evidence was based on what he was told by Veniamin who shot Peirce.
Under the subheading ‘Fears for Informer 3838’s safety’, the article stated that Victoria Police had spent ‘millions in a legal fight trying to prevent Informer 3838’s former clients from being told she was a police informer while she represented them’. The article then stated, ‘As part of the court action, multiple affidavits were prepared outlining the fears police held for her [Informer 3838’s] life’. Under the margin heading, ‘Gatto never charged’, appearing next to this part of the article, the article said:
·Gatto was never charged with either murder,[4] but it is understood he was questioned by police
·Nobody has ever been convicted of killing Frank Benvenuto
·Vince Benvenuto was acquitted of Victor Peirce’s murder
·The only person convicted over Peirce’s killing was another associate of Gatto, getaway driver, Faruk Orman, in 2009
·Veniamin was shot dead by Mick Gatto in 2004, who was acquitted on the grounds of self-defence.
[4]By the positioning of this statement in the article, it is plain that the reference to ‘either murder’ in this dot point is a reference to the murders of Frank Benvenuto and Victor Peirce.
Trial judge’s analysis
The trial judge commenced his analysis by referring to relevant authorities, including Lewis v Daily Telegraph Ltd,[5] Farquhar v Bottom,[6] Mirror Newspapers Ltd v Harrison,[7] Chakravarti v Advertiser Newspapers Ltd,[8] Amalgamated Television Services Pty Ltd v Marsden,[9] and Favell v Queensland Newspapers Pty Ltd.[10] Relying on the authorities to which he referred, the judge said that:
[5][1964] AC 234.
[6][1980] 2 NSWLR 380 (‘Farquhar’).
[7](1982) 149 CLR 293; [1982] HCA 50 (‘Harrison’).
[8](1998) 193 CLR 519; [1998] HCA 37 (‘Chakravarti’).
[9](1998) 43 NSWLR 158 (‘Marsden’).
[10](2005) 79 ALJR 1716; [2005] HCA 52.
·whether the meanings pleaded by the applicant were in fact conveyed by the article had to be considered from the perspective of an ordinary reasonable reader;[11]
·the assessment of meaning was ultimately a matter of impression, rather than close scrutiny and analysis of the article;[12]
·the ordinary reasonable reader is a person of fair, average intelligence, who is neither perverse, morbid or suspicious of mind, nor avid for scandal, but is not unusually naïve, engages in a degree of loose thinking and can and does read between the lines in the light of their general knowledge and experience of worldly affairs;[13]
·the ordinary reasonable reader has a capacity for implication that is greater than that of a lawyer, and there will be greater latitude to the reader to draw adverse imputations if the publication is sensational, or the words used are imprecise, ambiguous or loose;[14]
·hypothetical reasonable readers are taken to have a uniform view of the meaning of a publication, which is the approximate centre point in the range of possible meanings;[15]
·each pleaded meaning must be considered in the context of the entire article;[16] and
·where a publication concerns allegations of criminal conduct, it will be important to draw a distinction between a meaning that the plaintiff is being investigated in relation to, or is suspected of, the conduct, and a meaning that the plaintiff is guilty of the conduct.[17]
[11]Reasons, [25].
[12]Ibid [26].
[13]Ibid [27].
[14]Ibid [28].
[15]Ibid [29].
[16]Ibid [30].
[17]Ibid [31].
The judge then turned to the imputations and said that imputations (a) to (c) ‘relate[d] directly to Inspector Hall’s evidence’.[18] His Honour said that ‘the ordinary reasonable reader would understand the Article to be reporting excerpts of evidence given by Inspector Hall in a 2017 Supreme Court judgment’.[19]
[18]Ibid [37].
[19]Ibid.
The judge said that the extracted quote, ‘That group specifically stated that if [3838] were found to be a human source then [she] would be killed’ (described by his Honour as ‘the emphasised paragraph’),[20] would have been understood by the reasonable reader as being a paragraph that formed part of the affidavit evidence given by Inspector Hall.[21] His Honour then said:
The statements attributed to Inspector Hall are unequivocal. However, the Article does not state that Inspector Hall’s evidence was accepted, or that any relevant conclusion was reached in respect of that evidence in the Supreme Court. At the outset, the headline of the Article informs the reader that the Article is about evidence ‘told’ to a court, not about matters which were found by the Court to be proven. The ordinary reasonable reader would not conclude that evidence given to a court was accepted merely because the witness was said to hold a position of authority and to be experienced. The reader would understand the difference between evidence presented to a court and findings by a court that a matter had been proven, and would appreciate that Inspector Hall’s evidence might have been tested, challenged and ultimately not accepted in whole or in part. Without more the report of evidence given by Inspector Hall does not convey the meanings in imputations (a) to (c).[22]
[20]Ibid [38].
[21]Ibid.
[22]Ibid [39].
The judge then rejected a submission that there were features in the article which raised suspicions about the applicant and which led to imputations (a) to (c) being conveyed.[23]
[23]Ibid [41]–[42].
The judge then dealt with imputations (d) to (h), and gave additional reasons for rejecting imputation (a), as follows:
For the same reasons, and for the reasons which follow in relation to imputations (d), (e),[24] (g) and (h), imputation (f), that Mr Gatto is a murderer, is not made out.
The reasonable reader might consider the matters identified by Mr Gatto as creating a ‘flavour of suspicion’ to be more material to imputation (a), that Mr Gatto had threatened to kill Ms Gobbo. Information in the Article about the professional relationship between Mr Gatto and Ms Gobbo, her pursuit of him as a police informer, her involvement with Witness B and taking credit for his evidence in the criminal proceedings, and the allegations made by Witness B in those proceedings, are used by the ABC to put Inspector Hall’s evidence that Mr Gatto had threatened to kill Ms Gobbo into context. These matters go beyond the excerpts of the affidavit of Inspector Hall contained in the Supreme Court judgment. The reasonable reader would conclude the Article was conveying that these matters were relevant to the evidence of Inspector Hall that Mr Gatto threatened to kill Ms Gobbo, and might consider whether it explained a motivation or reason for a threat.
However, the reasonable reader would understand that matters reported do not all lead in one direction. The reader might conclude Ms Gobbo believed she had grounds to pursue Mr Gatto, but this is balanced against the statement in the Article that she was forced to stop her pursuit in 2009 when she was deregistered as an informer. And while the reader is told Mr Gatto was questioned by police, who the reader would infer were well aware of the allegations made by Witness B, Mr Gatto was never charged with the murders of Mr Peirce and Frank Benvenuto. The reasonable reader would doubt Mr Gatto’s motivation to threaten Ms Gobbo given he was not in prison and was not the subject of any current investigation based on information she provided or procured. In the light of the circumstances outlined, the reasonable reader would not infer that the Article meant Mr Gatto had threatened Ms Gobbo.
Mr Gatto relied on the Article building off the reputation for which he is renowned, which he said was a matter of universal notoriety, and therefore general knowledge. Beyond references to ‘gangland’ and ‘underworld’, Mr Gatto did not identify what about his reputation was general knowledge. In any event, the meanings in the Article must be established without reliance on extrinsic facts, or bias or prejudice as the basis of inference. While the reasonable reader would read the ‘gangland’ and ‘underworld’ references to Mr Gatto as pejorative, Mr Gatto has not sued on either meaning. Those terms place Mr Gatto in the milieu with which the Article is concerned and give rise to general suspicion. The suspicion created is not specific to imputation (a) and is not such that a reasonable reader would conclude, reading the whole Article, that it meant Mr Gatto did threaten to kill Ms Gobbo. Imputation (a) is not made out.
Imputations (d), (e), (g) and (h) relate directly to matters reported in relation to the criminal proceedings. The reasonable reader would understand that the Article clearly and repeatedly attributes allegations that Mr Gatto was involved in arrangements for Frank Benvenuto and Mr Peirce to be shot and killed to evidence given by Witness B, which was based on what he was told by Mr Veniamin. The Article states Witness B was arrested by police on serious drug charges after a tip off by Ms Gobbo. The Article reports that while it is understood Mr Gatto was questioned by police in relation to the deaths of Frank Benvenuto and Mr Peirce, he was never charged; nobody has been convicted of killing Frank Benvenuto; Vincent Benvenuto was acquitted and Mr Orman was the only person convicted of Mr Peirce’s murder. Further, in relation to imputation (e), that Mr Gatto is a hit man, Mr Gatto’s evidence is that a hit man is a person who performs an arranged killing. The Article does not convey that Mr Gatto is suspected of, let alone has engaged in, such conduct.
The only other information which bears on these imputations is the report that Ms Gobbo included Mr Gatto as a work in progress on the list of her ten most significant convictions or arrests, which is linked in the Article to the evidence of Witness B in the criminal proceedings. The ordinary reasonable reader would understand that in combination these matters mean that evidence of Witness B as to what he was told by Mr Veniamin resulted in Mr Gatto being questioned by police in relation to the deaths of Frank Benvenuto and Mr Peirce. The reader would also understand that Mr Gatto had not been charged with any offence in relation to these allegations, much less convicted. The reasonable reader would understand the Article to convey that Mr Gatto was questioned and possibly investigated for those matters, but that it fell short of a meaning that Mr Gatto was a hitman or responsible for the murders of Frank Benvenuto and Mr Peirce, lured Mr Peirce to his death, or that Mr Peirce was killed on his orders. Imputations (d), (e), (g) and (h) are not made out.[25]
[24]Mistyped in the original as a second ‘(d)’.
[25]Reasons, [43]–[48] (citations omitted).
Applicant’s contentions
The applicant contended that, in rejecting imputations (a) to (d) and (g) and (h), the judge made three errors.
First, relying upon High Court authority,[26] the applicant noted that the judge was required to determine the single meaning conveyed by the article. The applicant submitted, however, that the judge erred when he said that the hypothetical reasonable reader’s uniform view of the meaning of a publication is ‘the approximate centre point in the range of possible meanings’.[27]
[26]Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, 505–6 (Brennan J); [1982] HCA 4 (‘Reader’s Digest’); Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, 468 [7] (French CJ, Gummow, Kiefel and Bell JJ); [2009] HCA 16 (‘Radio 2UE’).
[27]Reasons, [29].
Secondly, the applicant contended that, despite the judge referring to Marsden, he failed to take into account that the article was an online news article, ‘akin to a newspaper, not a book’. The applicant noted that the reader of a book is assumed to read it with more care than he or she would read a newspaper.[28]
[28]Marsden (1998) 43 NSWLR 158, 165 (Hunt CJ at CL, Mason P and Handley JA agreeing at 161).
Thirdly, the applicant contended that the judge erred in failing to take into account that the article ‘was sensational’. The applicant submitted that the subject matter of the article included ‘threats to kill Informer 3838 and responsibility for the murders of Victor Peirce and Frank Benvenuto’. The applicant relied upon Marsden as authority for the proposition that, the more sensational an article, the less likely it is that the ordinary reasonable reader would have read it with the degree of analytical care which may otherwise have been given to a book.[29]
[29]Ibid.
The applicant submitted that, ‘in the context of the article as a whole and as a matter of impression’, the following words, contained in the text or headlines of the article gave rise to imputations (a) to (c):
(A)‘Gangland figure Mick Gatto threatened to kill police Informer 3838, court told.’
(B)‘Underworld figure Mick Gatto threatened to kill a lawyer turned informer if it was ever proven she was speaking to police, according to the confidential evidence of a senior police officer.’
(C)‘Inspector Brooke Hall stated in a 2016 affidavit that the informer would “almost certainly” be murdered if her former clients were told by the Office of Public Prosecutions that she had been speaking to police while she acted as their lawyer.’
(D)‘Some Underworld figures believe “crooks” appealing their convictions do not want Informer 3838 dead.’
(E)‘Inspector Hall, an officer with more than 30 years’ experience, stated in his affidavit that the risk to Informer 3838 came from “some of Australia’s most notorious and violent criminals who are proven to have organised murders in the past”.’
(F)‘His affidavit stated that Gatto, Horty Mokbel — brother of Tony Mokbel — and others had threatened her.’
(G)‘That group specifically stated that if [3838] were found to be a human source then [she] would be killed.’
(H)‘No further information about how or when the threats were made was included in the affidavit excerpts, which were released in a 2017 Supreme Court judgment.’
(I)‘PHOTO: Mick Gatto is one of the few prominent former clients of Informer 3838’s who is not dead or in prison’ (together with the photo to which we have already referred).
(J)‘In a letter to police, Informer 3838 claimed that she was “regrettably” forced to stop her pursuit of Gatto and the Carlton Crew when she was deregistered as an informer in 2009.’
(K)‘The ABC understands these claims relate to evidence implicating Gatto in the murders of Victor Peirce and fruit and vegetable wholesaler Frank Benvenuto during Melbourne’s vicious gangland war.’
(L)‘Three people familiar with the Informer 3838 case confirmed she was taking credit for evidence one of her former clients gave about the murders, but she had never provided information which led to charges being laid against Gatto.’
(M)‘Gatto’s links to Informer 3838.’
(N)‘The possible involvement of Gatto in the royal commission shapes as an intriguing prospect, as he is one of the few prominent former clients of Informer 3838 who is not dead or in prison.’
(O)‘Gatto is one of the great survivors of Melbourne’s underworld.’
(P)‘He beat murder charges over the death of Andrew “Benji” Veniamin, escaped unscathed from multiple plots to kill him, including at his son’s wedding, and even managed to build a significant fortune despite declaring bankruptcy in 1993 after a failed investment in a bonboniere business.’
(Q)‘Informer 3838 was close to Gatto for at least four years after she started informally providing information to police.’
(R)‘Gatto was one of her last clients, and she continued to act on his behalf until at least November 2008.’
In relation to imputation (a), the applicant submitted that the words in (A) to (R) went beyond a meaning that there were reasonable grounds to suspect that the applicant had threatened to kill Informer 3838. Moreover, the words in (H) ‘treat[ed] as a fact that threats had been made’. Additionally, it was submitted that (D) and (I) in combination gave support to a motive on the part of the applicant to threaten to kill Informer 3838. The argument appeared to be that the reference in the caption to the applicant not being dead or in prison identified him as a person who was not appealing any conviction and was therefore to be contrasted with the ‘crooks’ who were appealing their convictions and who did not want Informer 3838 dead.
In relation to imputations (b) and (c), the applicant submitted that these arose from several of the passages identified. Particular reliance was placed on (E) to (G), (J) to (L), (O) and (P).
Next, the applicant submitted that, again ‘in the context of the article as a whole and as a matter of impression’, (J) to (L) and (O) to (R), together with the following words contained or referred to in the article, gave rise to imputations (d), (g) and (h):
(S)The second bullet point under ‘Key points’: ‘He was accused of orchestrating a hit by a protected witness linked to Informer 3838.’
(T)‘That client, known only as witness B, was arrested by police on serious drug charges after a tip-off by the lawyer.’
(U)‘It was during the murder trial of Vince Benvenuto, the man charged with Victor Peirce’s murder, that allegations of Gatto’s involvement were aired.’
(V)‘Informer 3838’s former client Witness B, told police of contract killings that involved a series of double-crosses, which ended in the deaths of Frank Benvenuto and Peirce and the conviction of Faruk Orman.’
(W)‘A list compiled by Informer 3838 to demonstrate her value to police included Orman’s conviction and “work in progress” regarding Gatto and his crew as part of her ten “most significant convictions or arrests”.’
(X)All of the bullet points under the heading ‘Witness B’s allegations’.
(Y)All of the bullet points under the heading ‘Gatto never charged’.
In relation to imputation (d), the applicant relied upon (J), (K) and (L). He submitted that by drawing attention to Informer 3838’s assertions that she was ‘”regrettably” forced to stop her pursuit of Gatto’, the article implied to the ordinary, reasonable reader, ‘engaging in a certain amount of loose thinking’, that the applicant was involved in the murders of Victor Peirce and Frank Benvenuto, but that she was deregistered as an informer before she could gather sufficient evidence to prove these facts. The applicant also placed reliance upon (W), (X) and (Y), submitting that the ‘work in progress’ referred to in (W) was the gathering of necessary evidence; and that, in the context of the article, ‘Witness B’s allegations’ were more than just allegations; and additionally that there was ‘an insinuation’ in the margin heading, ‘Gatto never charged’, that the applicant committed, but got away with, the murders of Mr Peirce and Mr Benvenuto.
In relation to imputations (g) and (h), the applicant submitted that these arose from (X): imputation (g) arising from the seventh bullet point; and imputation (h) arising from the fifth to seventh bullet points.
Ultimately, the applicant contended that it was the ‘unequivocal nature’ of the various statements in the article referred to above, combined with the ‘sensational nature’ of the article, which gave rise to the imputations which were wrongly rejected by the judge, and in particular imputations (a) to (c).
Respondents’ contentions
The respondents contended that the judge did not err in any of the three ways contended for by the applicant. In relation to the judge’s statement that hypothetical reasonable readers are taken to have a uniform view which is the approximate centre point of the range of possible meanings, the respondents noted that the present case was not one involving a range of possible meanings. They also submitted that his Honour’s analysis demonstrated that he did not come to the conclusions now sought to be impugned by a process of choosing an approximate centre point from a range of possible meanings.
In relation to the other two errors asserted by the applicant, the respondent contended that there was nothing in his Honour’s reasons which suggested that he had failed to approach the article on the basis of the guidance given in Marsden. The respondent also submitted that, in any event, the analysis in Marsden affords no more than guidance: it does not lay down rules that are required to be applied when determining the natural and ordinary meaning of a publication.
In relation to imputations (a) to (c), the respondents submitted that these were ‘precisely the sort of strained, forced, over-elaborate and legalistic construction, involving the parsing and analysing of each word, sentence and paragraph in the article, against which the authorities repeatedly warn’. The applicant’s analysis was submitted to overlook ‘the … overwhelming … impression conveyed by the article as a whole: that it is a report of evidence given about [the applicant] in two separate legal proceedings’.
The respondents contended that the references in the article to Inspector Hall’s ‘evidence’ or ‘affidavit’ or to what a court was ‘told’, supported a finding that ordinary reasonable readers would have understood the article to be reporting on evidence given to a court, ‘and so conveying no more than that [the applicant] was reasonably suspected of the matters the subject of imputations (a) to (c)’.
With specific reference to imputations (b) and (c), the respondents submitted that Inspector Hall’s evidence, which the respondents contended formed the basis of these alleged imputations, ‘was expressly contradicted in those parts of the article which reported that [the applicant] had been cleared of the murder of Veniamin and was never charged with the murders of Peirce and Benvenuto’. The respondents submitted that for imputations (b) and (c) to have been conveyed, readers would not only have had to confuse allegations given in evidence with established fact, but also to have overlooked the contradictory parts of the article entirely.
In relation to imputations (d), (g) and (h), the respondents again contended that these were strained, forced, over-elaborate, legalistic, and therefore suffered from the same vices as those from which imputations (a) to (c) suffered.
The respondents contended that the article repeatedly emphasised that the allegations concerning the applicant’s involvement in the murders of Mr Peirce and Mr Benvenuto were no more than the subject of evidence given by Witness B in earlier criminal proceedings and that the applicant was never charged with, let alone convicted of, those murders. Moreover, rather than the article conveying imputations (d), (g) and (h), the article repeatedly stated that the applicant was never charged with any crime the subject of those imputations. The respondents submitted that the trial judge’s conclusions were consistent with the ordinary meaning of the article as a matter of general impression.
Whether an imputation is conveyed: principles to be applied
The principles to be applied in determining whether a pleaded imputation is conveyed have been summarised on many occasions.[30] In Reader’s Digest, Brennan J (with whom Gibbs CJ, Stephen, Murphy and Wilson JJ agreed) said:
Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees — Lord Selborne’s reasonable men (Capital and Counties Bank v Henty) or Lord Aitken’s right-thinking members of society generally (Sim v Stretch) or Lord Reid’s ordinary men not avid for scandal (Lewis v Daily Telegraph Ltd) — would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v Deane, being a standard common to society generally (Miller v David; Myroft v Sleight; Tolley v JS Fry & Sons Ltd)).[31]
The latter part of this passage was more recently quoted and adopted by French CJ, Gummow, Kiefel and Bell JJ in Radio 2UE.[32]
[30]See, eg, Ten Group Pty Ltd v Cornes (2012) 114 SASR 46, 73–4 [91]–[94] (Gray J); [2012] SASCFC 99 (‘Ten Group’); Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33, 49–51 [63]–[73] (White J); [2015] FCA 652 (‘Hockey’); Hardie v The Herald and Weekly Times Pty Ltd [2015] VSC 364, [46]–[51] (Whelan JA) (‘Hardie’), and on appeal, [2016] VSCA 103, [46] (Ashley, Tate and Beach JJA).
[31](1982) 150 CLR 500, 505–6 (citations omitted); [1982] HCA 4.
[32](2009) 238 CLR 460, 468 [7]; [2009] HCA 16.
In Farquhar, Hunt J summarised the attributes of the ordinary reasonable reader as follows:
This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd; Jones v Skelton; Lang v Australian Consolidated Press Ltd. It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer: Lewis v Daily Telegraph Ltd; Morgan v Odhams Press Ltd; Lang v Australian Consolidated Press Ltd; Middle East Airlines Airliban SAL v Sungravure Pty Ltd.[33]
[33][1980] 2 NSWLR 380, 386 [22] (citations omitted). See further Jones v Skelton [1963] 2 SR (NSW) 644, 650; Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1, 7 (Griffith CJ); [1908] HCA 22; Harrison (1982) 149 CLR 293, 301 (Mason J); [1982] HCA 50; World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712, 725-6 (Glass JA); Reader’s Digest (1982) 150 CLR 500, 505–6 (Brennan J); [1982] HCA 4; Li v The Herald and Weekly Times Pty Ltd [2007] VSC 109, [63]–[74] (Gillard J).
In John Fairfax Publications Pty Ltd v Rivkin,[34] McHugh J referred to the attributes of the reasonable reader of a publication in the following terms:
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.[35]
[34](2003) 77 ALJR 1657; [2003] HCA 50 (‘Rivkin’).
[35]Ibid 1661–2 [26] (emphasis added) (citations omitted).
In relation to the way in which a publication must be read, McHugh J went on to say:
The rule that the publication must be read as a whole is particularly important where the publication reports a defamatory statement by a third party. The general rule is that a person who publishes the defamatory statement of a third party adopts the statement and has the same liability as if the statement originated from the publisher. Accordingly, it is not the law that a person reporting the defamatory statement of another is only liable if he or she adopts the statement or reaffirms it. But, as Griffith CJ pointed out in Ronald v Harper, although as a general rule a person who repeats a defamation adopts it as his or her own statement, it is not ‘a rule of invariable application’. The context of the statement may show that it is refuted or undermined by other parts of the publication.[36]
[36]Ibid 1662 [27] (citations omitted).
In Marsden, Hunt CJ at CL (with whom Mason P and Handley JA agreed) discussed the relevance of the mode or manner of publication and compared the reader of a book with the reader of a newspaper as follows:
The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed: Capital and Counties Bank Ltd v George Henty & Sons; English and Scottish Co-Operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd. 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 is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book (Morgan v Odhams Press Ltd), and the less the degree of accuracy which would be expected by the reader: ibid; Steele v Mirror Newspapers Ltd. The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking: Lewis v Daily Telegraph Ltd; Morgan v Odhams Press Ltd; Steele v Mirror Newspapers Ltd; Mirror Newspapers Ltd v World Hosts Pty Ltd; Parker v John Fairfax and Sons Ltd.[37]
[37]Marsden (1998) 43 NSWLR 158, 165 (citations omitted).
As to whether a publication which refers to a person having been charged with an offence, or a publication which refers to evidence having been given of a particular act having occurred, conveys the meaning that the offence was committed or the act performed, in Chakravarti, Kirby J said:
Although reporting that a person has been arrested and charged undoubtedly occasions damage to some degree to the reputation of that person, this must be tolerated on the basis of the legitimate public interest in the reporting of such facts. Only if the publisher goes on to ‘say or suggest that the charge was well founded’ will such a report carry an imputation of guilt and sustain a remedy in defamation.[38]
Is the hypothetical reasonable reader’s uniform view of the meaning of a publication ‘the approximate centre point in the range of possible meanings’?
[38](1998) 193 CLR 519, 576 [134]; [1998] HCA 37 (citations omitted). See also Harrison (1982) 149 CLR 293, 303 (Mason J); [1982] HCA 50.
The judge relied upon a decision of the English Court of Appeal in Cruddas v Calvert,[39] as referred to at first instance (and without any disapproval, on appeal) in Hardie for the proposition that, in determining what meaning is conveyed by a publication, the uniform or single meaning is ‘the approximate centre point in the range of possible meanings’.[40] The question for the trier of fact, in a defamation proceeding, however, is what is the single or dominant meaning which the trier of fact believes was actually conveyed by the relevant publication — what many of the authorities in this area have referred to as the ‘single meaning rule’.[41]
[39][2013] EWCA Civ 748 (‘Cruddas’).
[40]Reasons, [29].
[41]See, eg, Slim v Daily Telegraph Ltd [1968] 2 QB 157, 173–5 (Diplock LJ) (‘Slim’); Ten Group (2012) 114 SASR 46, 103–4 [213] (Blue J); [2012] SASCFC 99; Hockey (2015) 237 FCR 33, 51 [73] (White J); [2015] FCA 652; Hardie [2015] VSC 364, [48]–[49] (Whelan JA); Dutton v Bazzi [2021] FCA 1474, [17] (White J).
As was said by Diplock LJ in Slim, in relation to jury trials, the natural and ordinary meaning is the single meaning which all of the members of the jury must agree upon as being the ‘right’ meaning. His Lordship then said:
The decision as to defamatory meanings which words are capable of bearing is reserved to the judge, and for this reason, and no other, is called a question of law. The decision as to the particular defamatory meaning within that category which the words do bear is reserved to the jury, and for this reason, and no other, is called a question of fact. But the recognition that there may be more than one meaning which reasonable men might understand words to bear does not absolve the jury from the duty of deciding upon one of those meanings as being the only ‘natural and ordinary meaning’ of the words. Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the ‘right’ meaning. And so the unexpressed major premise, that any particular combination of words can bear but a single ‘natural and ordinary meaning’ which is ‘right’, survived the transfer from judge to jury of the function of adjudicating upon the meaning of words in civil actions for libel.
But where an action for libel is tried by a judge alone without a jury, it is he who has to arrive at a single ‘right’ meaning as ‘the natural and ordinary meaning’ of the words complained of; and with the concentration of functions in a single adjudicator, the need for his distinguishing between meanings which words are capable of bearing and the choice of the one ‘right’ meaning which they do bear disappears.[42]
[42]Slim [1968] 2 QB 157, 174–5 (emphasis in original).
To the extent that the judge relied upon Cruddas and/or Hardie for the proposition that the single (or uniform) view of the meaning of a publication, attributed to hypothetical reasonable readers, is the approximate centre point in the range of possible meanings, that reliance was, with respect, misplaced. While the Court in Cruddas referred to ‘the artifice of a putative single meaning’ requiring the Court to find ‘an approximate centre point in the range of possible meanings’, it also said, in the following sentence, that if a peripheral meaning was selected by a court of first instance then ‘an appellate court may very well be satisfied that it has erred, because the single meaning has, generally speaking, to be the (or a) dominant one’.[43] That is, merely because a peripheral meaning might be selected by a court of first instance does not mean that an appellate court would necessarily conclude that the primary judge had erred; but an appellate court might be more likely to conclude that a peripheral meaning was not in fact the meaning conveyed.
[43]Cruddas [2013] EWCA Civ 748, [32] (Longmore LJ) (emphasis added).
As we have already observed, the issue for the trier of fact is to select the single meaning which is the ‘natural and ordinary meaning’ of the words published. This (the single meaning), depending on the words used and the manner of publication, may or may not be ‘the approximate centre point in the range of possible meanings’. There is no uniform rule that, in every case, the natural and ordinary meaning of a publication is the centre point in the range of possible meanings. The choice of a meaning at one end of the spectrum of the range of meanings that are open, however, may well invite greater scrutiny of whether that meaning was in fact conveyed.
While the ‘right’ (single or uniform) meaning of a publication will often be ‘the approximate centre point in the range of possible meanings’,[44] because a reasonable reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning,[45] there is (as we have said) no uniform rule to that effect. In every case, the publication complained of must be read as a whole, in order to determine the single or uniform natural and ordinary meaning of the publication. Nothing said in Hardie (either at first instance or on appeal) gainsaid these propositions.
[44]Reasons, [29].
[45]See Rivkin (2003) 77 ALJR 1657, 1661 [26] (McHugh J); [2003] HCA 50.
The nature of the appeal in the present case
The appeal to this Court is by way of rehearing. The principles concerning the way in which an appeal by way of rehearing is conducted were not in dispute between the parties. Both parties accepted that this Court’s task is to conduct a real review of the trial, the evidence and the judge’s reasons and give the judgment that ought to have been given at first instance. That said, both sides also accepted that the focus of the real review is the identification of error — the existence of error being an indispensable condition of a successful appeal.[46]
[46]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203–4 [14] (Gleeson CJ, Gaudron and Hayne JJ); [2000] HCA 47; Fox v Percy (2003) 214 CLR 118, 127–8 [26]–[27] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 555–63 [29]–[50] (Gageler J); [2018] HCA 30 (‘SZVFW’).
The respondents accepted that if the applicant established that one of the judge’s conclusions in relation to the imputations in question was affected by one or more of the specific errors alleged, then this Court should set that conclusion aside and decide for itself whether the relevant imputation was conveyed.
On the other hand, what if the applicant fails to establish that any of the judge’s conclusions were affected by one or more of the specific errors for which he contended? In circumstances where the single natural and ordinary meaning conveyed by the article must be selected, as a matter of impression, from a range of possible meanings that the article might be reasonably capable of bearing,[47] the question remains whether this Court could or should interfere with the judge’s conclusion if we merely came to a different view from the judge as to the single meaning conveyed.
[47]See Slim [1968] 2 QB 157, 173–5 (Diplock LJ); Cruddas [2013] EWCA Civ 748, [32] (Longmore LJ); Hardie [2015] VSC 364, [50] (Whelan JA).
In oral argument, the applicant accepted that if a choice arose between conclusions which were equally open or finally balanced, and where there could be no preponderance of view, error would not be established merely because this Court had a preference for one view over another. Further, both parties accepted the correctness of Gageler J’s analysis in SZVFW as follows:
The course of High Court authority since Warren v Coombes has accordingly proceeded on a consistent understanding of how the line of demarcation is to be drawn between those of a primary judge's conclusions which attract the correctness standard of appellate review reaffirmed in that case and those which attract the deferential standard applicable to appellate review of an exercise of judicial discretion. Without excluding the potential for other considerations to affect the standard of appellate review in a particular category of case, the understanding provides a principled basis for making at least the principal distinction.
The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable.[48]
[48]SZVFW (2018) 264 CLR 541, 563 [48]–[49]; [2018] HCA 30.
Some difficulty arises in determining where, within the lines of demarcation described by Gageler J, a decision of this nature fits.
On the one hand, it might be said that the decision is one that is made by reference to a legal criterion that demands a unique outcome, namely the ascertainment of a single, natural and ordinary meaning of the particular words. On that basis, the standard of review would be the correctness standard. Thus, if this Court formed a different view from that of the trial judge as to whether the pleaded imputations were conveyed, it would find error and allow the appeal.
On the other hand, as Gageler J observed, there may be categories of cases where other considerations affect the standard of judicial review. In our opinion, defamation law is such a category, by reason of its unique and somewhat artificial mode of analysis. The ultimate conclusion as to the single meaning conveyed by the publication is derived as a matter of impression, by choosing an answer between or among a range of legitimate and reasonable answers (being those imputations the publication is capable of conveying).[49] Thus, the legal criterion applied has features that tolerate a range of outcomes. For that reason, we consider that, while we have not had the benefit of full argument, the better view is that in a defamation trial by judge alone, the appropriate standard of review by an appellate court of the trial judge’s determination of the single meaning of the publication is to be approached by reference to the House v The King standard. In that context, the question is not whether this Court has formed a different view from that of the trial judge, but whether the trial judge’s determination was reasonably open.
Proposed grounds 1 and 2: did the judge err in not finding that imputations (a) to (c) were conveyed by the article?
[49]That is so even though, in the present case, the issues were presented to the trial judge in a binary manner.
As we have already noted, the applicant contended that the judge’s consideration of the meaning of the article was affected by three specific errors: first, considering that the uniform view of the meaning of the article was the approximate centre point in the range of possible meanings; secondly, failing to take into account that the article was an online news article, ‘akin to a newspaper, not a book’; and thirdly, failing to take into account the fact that the article was ‘sensational’.
In relation to the first error contended for by the applicant, we have already said that there is no uniform rule that, in every case, the natural and ordinary meaning of a publication is the centre point in the range of possible meanings. To the extent that the judge held otherwise, he was, with respect, wrong.
Any error by the judge in stating the correct principle was, however, of no moment in the present case. The judge’s analysis of the article shows that his Honour did not engage in a reasoning process which involved the identification of a range of possible meanings, from which a meaning in the approximate centre of the range was chosen. Indeed, as the applicant conceded in his written case in this Court, the question of the meaning of the article was a ‘binary choice’. There was no continuum, and there was no ‘approximate centre point’, to be considered or found. As his Honour’s reasons disclose, the judge carefully considered each of the applicant’s pleaded imputations by reference to the whole of the article, and the various matters in the article which told either for or against the imputation for which the applicant contended.
As to the second and third errors contended for by the applicant, the judge commenced his reasons by observing that the article was an article posted on the first respondent’s website. The judge identified the subject matter of the article as being a report on evidence given about the applicant in two court proceedings; the first being a criminal proceeding concerning the murder of Victor Peirce; and the second concerning an application to prevent disclosure of information which would have the effect of revealing the identity of Informer 3838. The analysis of the article conducted by the judge does not suggest that his Honour was under any misapprehension as to the type of publication he was dealing with (an article on a website, not a book) or its level of sensationalism (if any).
In relation to the form of the publication (article, not book), we are not persuaded that his Honour’s analysis was affected by the second error contended for by the applicant. While not specifically contrasting the article with a book, the judge gave appropriate consideration to the possibility that a reasonable reader of the article would engage in a degree of loose thinking.[50]
[50]Reasons, [27].
In relation to the article’s level of sensationalism, in the course of his analysis, the judge referred to relevant authorities[51] for the proposition that ‘[t]here will be greater latitude to the reader to draw adverse imputations if the publication is sensational, or the words used are imprecise, ambiguous or loose’.[52] That said, we do not think that the article was particularly sensational. It reported on matters of a kind that one regularly sees in news publications, and it did so in terms which were not extravagant or particularly colourful. Ultimately, we are not persuaded that his Honour committed the third error contended for by the applicant.
[51]Farquhar [1980] 2 NSWLR 380, 386 [23] (Hunt J); Chakravarti (1998) 193 CLR 519, 574 [134] (Kirby J); [1998] HCA 37.
[52]Reasons, [28].
For the reasons given above, we are not persuaded that the judge’s conclusions in respect of imputations (a), (b) and (c) were attended by any of the specific errors contended for by the applicant. It remains to determine whether, notwithstanding the absence of specific error, the judge erred in not finding that any of these imputations were conveyed.
Imputation (a)
In relation to imputation (a), the issue was whether the single and uniform meaning of the article was that the applicant had threatened to kill Informer 3838, or whether it was that evidence had been given in a court (or on affidavit) that the applicant had threatened to kill Informer 3838. That is, was the (or a) dominant meaning that the threat referred to had actually been made, or was it that evidence had been given that the threat had been made (without saying anything about whether the evidence was accepted by a court or objectively true).
Plainly, as the parties’ contentions in this Court show, and as the judge’s analysis also shows, there are features of the article pointing in both directions. In the end, we think the issue is finely balanced. Different triers of fact could reasonably come to either of the two possible meanings being the (or a) dominant one. In such circumstances, we are not persuaded that his Honour’s choice of meaning (and his Honour’s failure to find that imputation (a) was conveyed) involved any error.
Imputations (b) and (c)
In relation to imputations (b) and (c), the first point to be made is that nowhere in the article is it stated in terms that the applicant is one of Australia’s most violent criminals; or that the applicant has been proven to have organised murders in the past. In order to arrive at these meanings one must link the reference in (F) to those (including the applicant) who had (allegedly) threatened Informer 3838, with the reference in (E) to the risk to Informer 3838 coming from ‘some of Australia’s most notorious and violent criminals who are proven to have organised murders in the past’. Whether the ordinary reasonable reader of the article would make that link is, we think, a matter capable of debate.
In any event, assuming in the applicant’s favour that the ordinary reasonable reader would make the link between those who were said to have threatened Informer 3838, with those who were said to be the cause of the risk to her, the issue then requiring analysis is the same as the issue we have already referred to in discussing imputation (a): namely, ‘Was what was being said in the article being said as a fact, or merely as a statement of the contents of an affidavit?’. For the reasons we have given in relation to imputation (a), we are not persuaded that his Honour’s conclusion in relation to imputations (b) and (c) involved any error.
Proposed grounds 3 and 4: did the judge err in not finding that imputations (d), (g) and (h) were conveyed by the article?
In relation to imputations (d), (g) and (h), the first point to be made (similar to the first point that we have made in relation to imputations (b) and (c)) is that nowhere in the article is it stated in terms that the applicant was responsible for the murders of Victor Peirce and Frank Benvenuto; or that the applicant plotted to lure Victor Peirce to his death; or that Victor Peirce was killed on the applicant’s orders. To arrive at these imputations, a significant amount of reading between the lines must be undertaken.
Reading the article as a whole, we are not persuaded that the judge erred in failing to find that imputations (d), (g) and (h) were conveyed by it. Much of the material relied upon by the applicant to support these imputations refers no more than to the fact that evidence has been given, or statements made, by particular individuals. Further, the article makes it plain that the applicant was never charged with, let alone convicted, of either murder. Additionally, there is nothing in the article which says or suggests that the assertions in it (be they statements or a recitation of evidence), in so far as they relate to the applicant, are well founded.[53]
[53]See Harrison (1982) 149 CLR 293, 303 (Mason J); [1982] HCA 50; Chakravarti (1998) 193 CLR 519, 576 [134] (Kirby J); [1988] HCA 37.
We see no error in the judge’s analysis of whether imputations (d), (g) and (h) were conveyed by the article. In particular, we are not persuaded that there was any relevant error in his Honour’s analysis at Reasons [44] to [48].
It follows that proposed grounds 3 and 4 must be rejected.
Conclusion
Proposed grounds 1 and 2 are sufficiently arguable to justify a grant of leave in respect of imputation (a). We will grant leave to appeal on those grounds in respect of that imputation. The application for leave to appeal will otherwise be refused, and the appeal dismissed.
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SCHEDULE OF PARTIES
| DOMENIC GATTO | Applicant |
| and | |
| AUSTRALIAN BROADCASTING CORPORATION | First respondent |
| NINO BUCCI | Second respondent |
| SARAH FARNSWORTH | Third respondent |
7
18
0