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Gatto v Australian Broadcasting Corporation

Gatto v Australian Broadcasting Corporation

Case [2022] VSCA 66 13 April 2022

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gatto v Australian Broadcasting Corporation

Details

AGLC: Domenic Gatto v Australian Broadcasting Corporation & Ors (according to the Schedule attached) [2022] VSCA 66
Case: [2022] VSCA 66
Decision Date: 13 April 2022

CaseChat Overview and Summary

Gatto v Australian Broadcasting Corporation is an appeal concerning defamation against the Australian Broadcasting Corporation. The appellant, Mr Gatto, alleged that a television broadcast by the respondent defamed him. The dispute reached the court of appeal following a decision at first instance that dismissed Mr Gatto’s claim. The court of appeal had to determine whether the trial judge correctly concluded that the meanings pleaded by Mr Gatto were not conveyed by the broadcast and whether this conclusion was affected by any specific error.

The central legal issue was whether the trial judge’s determination that the pleaded meanings were not conveyed by the broadcast was correct and whether this conclusion was influenced by any specific error. The court of appeal considered whether it was open to the trial judge to conclude that the pleaded imputations were not the single or dominant meaning of the matter complained of. The court also examined the authorities cited by the parties, including Cruddas v Calvert, Hardie v The Herald and Weekly Times, Slim v Daily Telegraph, and Minister for Immigration and Border Protection v SZVFW, to assess the correctness of the trial judge’s decision.

The court of appeal found that the trial judge’s conclusions regarding the meanings conveyed by the broadcast were not affected by any specific error. The court held that it was open to the trial judge to conclude that the pleaded imputations were not the single or dominant meaning of the broadcast. The court examined the evidence and found that the trial judge had correctly interpreted the broadcast in the context in which it was made. Therefore, the appeal was dismissed, affirming the trial judge’s decision.

The court did not make any further orders beyond dismissing the appeal. The decision underscores the importance of the context in which defamatory material is published and the need for careful consideration of the meanings conveyed by the material in question.

Orders