Gatto v Australian Broadcasting Corporation
[2021] VSC 83
•26 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2019 01467
| DOMENIC GATTO | Plaintiff |
| v | |
| AUSTRALIAN BROADCASTING CORPORATION & ORS (according to the attached schedule) | Defendants |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 – 24, 27, 28 July 2020 |
DATE OF JUDGMENT: | 26 February 2021 |
CASE MAY BE CITED AS: | Gatto v Australian Broadcasting Corporation & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VSC 83 |
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DEFAMATION – Whether pleaded meanings conveyed by online publication – Pleaded meanings concerned criminal conduct – Publication reported evidence given in court proceedings – Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 – Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 - Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 – John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60 – Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313 – Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 – Pleaded meanings not conveyed – Fair report defences not determined.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | D A Klempfner | Lennon Lawyers |
| For the Defendants | Dr M J Collins QC with S Mukerjea | ABC Legal |
HIS HONOUR:
In February 2019, the Australian Broadcasting Corporation posted an article written by the second and third defendants entitled ‘Gangland figure Mick Gatto threatened to kill police Informer 3838, court told’ on its website (‘the Article’). The plaintiff, Mr Gatto, alleges he is defamed by publication of the Article, and brings this proceeding claiming damages against the defendants (‘the ABC’).
There is no dispute that the Article was about Mr Gatto and was published by the ABC.
The Article reported on evidence about Mr Gatto given in two other court proceedings (‘the Proceedings’). The first were criminal proceedings against Faruk Orman and Vincent Benvenuto for the murder of Victor Peirce (‘the criminal proceedings’), in which a witness known as Witness B said that Mr Gatto was involved in arrangements which led to Frank Benvenuto and Mr Peirce being shot and killed. The second proceeding concerned an application to prevent disclosure of information which would have the effect of revealing the identity of Nicola Gobbo as being a police informer, known as informer 3838 (‘the disclosure proceeding’). Evidence was given in the disclosure proceeding by Victoria Police Inspector Brooke Hall that Mr Gatto had threatened to kill Ms Gobbo.
It is important to note at the outset that the ABC do not assert that allegations about Mr Gatto made in the Proceedings and reported in the Article are true.
In this proceeding Mr Gatto alleged the Article was a recitation of his willingness to murder, and imputed that he was a hit man, a murderer, and someone who had plotted or arranged the murder of others. The ABC argued that while the Article may have conveyed a meaning to the effect that Mr Gatto had been enquired about, or was suspected of, criminal conduct it did not convey the pleaded meanings which were to the effect that Mr Gatto was guilty of the criminal conduct. The first issue for determination is whether Mr Gatto has established that the Article conveys, in its natural and ordinary meaning, any one or more of the pleaded defamatory meanings.
The ABC argued that if the Article defamed Mr Gatto as alleged, the following defences were nevertheless available to it and defeated the claim:
(a) the defence of absolute privilege in s 4(1) of the Wrongs Act 1958 (Vic) (‘Wrongs Act’) in that the Article was a faithful and accurate report of court proceedings;
(b) the defence of qualified privilege at common law in that the Article was a fair and accurate report of court proceedings;
(c) the defences in ss 28 and 29 of the Defamation Act 2005 (Vic) (‘Defamation Act’) in that the Article was a combination of a fair summary of a public document and a fair report of proceedings of public concern.
Finally, there were significant issues as to assessment of damages having regard to matters including:
(a) Mr Gatto’s reputation, irrespective of the Article; and
(b) the relevance of damages recovered by Mr Gatto in another defamation action in respect of an article about the disclosure proceeding.
The Article
The Article was published by the first defendant on its website. The Article is reproduced below.
The pleaded imputations
Mr Gatto pleaded that the natural and ordinary meaning of the Article was:
(a) Mr Gatto had threatened to kill the police informer known variously as ‘Informer 3838’ or ‘Lawyer X’ (Ms Gobbo);
(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 hit man;
(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.
It was not in dispute that, if conveyed, these imputations were defamatory.
Did the Article convey the defamatory meanings?
Submissions
Plaintiff
The Article was published online, and is more transitory and therefore likely to be read with less care than a newspaper. The ordinary reasonable reader of such an article is more prone to engage in loose thinking, particularly where, as here, the words used are imprecise or ambiguous.
The Article uses evidence given in an unidentified court case as a springboard for a more general dredging of rumour and innuendo against Mr Gatto. The gist of the Article is a recitation of Mr Gatto’s willingness to murder. The natural and ordinary meanings of the Article read as a whole are that that Mr Gatto is a hit man, a murderer or someone who has plotted or arranged the murder of others.
The repetition of defamatory statements made by others is sufficient to attract liability. The attribution in the Article to information being from an affidavit or evidence given in a proceeding is more of a lawyer’s construct, the significance of which would not be appreciated by the ordinary reasonable reader. The emphasis placed on the affidavit being made by an inspector, a senior member of police with more than 30 years’ experience, has the effect of giving greater credibility and weight to the evidence.
A mere statement that a person is being investigated for or is suspected of committing a crime does not necessarily impute guilt. However, talk about investigation or suspicion may, depending on context, convey that the suspicion is well founded. In this case the meaning of the Article comes from the interrelationship between identification or description of Mr Gatto as an underworld or gangland figure, the nature of the threat which he is said to have made, what is said about his supposed relationship with Ms Gobbo, assertions about his involvement in the deaths of Mr Peirce and Frank Benvenuto, together with other suggestions of illegality and sharp practice. Combined, these matters go well beyond a suggestion that Mr Gatto is merely suspected of having committed the offences or having made the threat.
The meaning that an ordinary reasonable reader would attribute to a publication may be influenced by the overall tone or tenor, which may be tinged or even pregnant with insinuation or suggestion, and may implicitly invite the reader to adopt a suspicious approach. The fundamental vice of the Article is the interweaving of unconnected facts against the backdrop of constant references to Mr Gatto as an underworld or gangland figure, thereby giving credibility to assertions of his threat to kill and willingness to arrange the murder of others. The headline of the Article sets the tone by identifying Mr Gatto as a gangland figure and stating, in absolute terms, rather than as an allegation, unproven fact or suspicion, that he threatened to kill Ms Gobbo. The same information is repeated in the first paragraph, but with Mr Gatto now identified as an underworld figure. No context is provided for information about the letter from Ms Gobbo to police, and it is not attributed to any court proceedings. What is said about the letter suggests to the reader that Ms Gobbo was ‘onto something’. The credibility of the threat to kill is reinforced by the description of Mr Gatto’s former relationship with Ms Gobbo, and the role Ms Gobbo is said to have played in the convictions of dozens of gangland figures. Under the heading ‘Key Points’, Mr Gatto’s character as an underworld figure is reinforced, and there is speculation about him being subpoenaed to appear before a Royal Commission into Ms Gobbo’s role as an informer. These matters create a flavour of suspicion which builds on the reputation for which Mr Gatto is renowned, and which the Article is trading off. The very notion of the Article is that a threat of murder is the kind of threat Mr Gatto would have made, and is believable.
The recitation of Witness B’s allegations unequivocally imputes that Mr Gatto was involved in the murders of Mr Peirce and Frank Benvenuto. The heading ‘Gatto never charged’ does not reflect the inference to be drawn from the context of the Article as a whole, particularly where Mr Gatto is described as ‘one of the great survivors of Melbourne’s underworld’, and one of the few former clients of Ms Gobbo’s who is not dead or in prison. Use of the term ‘great survivor’ would lead the reader to conclude that Mr Gatto’s survival owed much to his ability to deal with supposed enemies or rivals, which provides context and credibility to the reader in respect of Mr Gatto’s pleaded meanings. The statement that Mr Gatto ‘beat murder charges’ suggests something other than innocence. The inference from the Article is that Mr Gatto has not been charged because he is smart enough to keep himself distant, he is the puppeteer who orchestrates murders, but is not the man with his finger on the trigger. This is further supported by the information that nobody has ever been convicted of killing Frank Benvenuto, and that the only person convicted of Mr Peirce’s murder was an associate of Mr Gatto.
Defendants
It is understandable that Mr Gatto is unhappy about the publication of the Article, which reports on very serious allegations that were made against him, in sworn evidence, in the criminal proceedings and the disclosure proceeding. Those allegations, which were to the effect that he had threatened to kill Ms Gobbo and was implicated in the murders of Mr Peirce and Frank Benvenuto, were defamatory and seriously so.
Each of Mr Gatto’s pleaded meanings is to the effect that he is guilty of — and not merely enquired about in relation to, or suspected of — criminal conduct. The authorities recognise at least three gradations of meaning in this context: that the plaintiff is guilty of the relevant conduct, that there are reasonable grounds to suspect that the plaintiff is guilty of the conduct, and that the plaintiff is being investigated in relation to the conduct. All three gradations convey a defamatory sting, but the sting is different in each case. Whether a particular publication carries one or another of the gradations depends on how the words of the publication would be understood by the ordinary reasonable person.
The question is: what is the single meaning that the ordinary reasonable reader will have understood to be conveyed by the Article? For the purpose of applying that test no regard should be had to the worst or most damaging interpretation that could be placed on the Article. The Court should put to one side the position of a reader avid for scandal, morbid, suspicious of mind or unduly naïve. The single meaning rule shifts the preferred meaning to the middle ground. It is necessary for the Court to find an approximate centre point in the range of possible meanings.[1] In submissions, Mr Gatto described the Article as subtle, clever and cleverly crafted, and urged the Court to find hidden meanings or the worst possible gloss that could be put on the words. Those submissions overlook the plain language of the Article, and are contrary to the approach which the authorities say should be taken to determine the single meaning. That exercise ‘should not be obscured by over-elaborate analysis or by looking for hidden meanings’.[2] The error in the approach urged by Mr Gatto was compounded by the submission that the ordinary reasonable reader would interpret the Article in the light of their knowledge of Mr Gatto’s bad reputation. A reader who interpreted the Article in the light of their own extraneous knowledge of Mr Gatto or his reputation would be reading meanings into the Article, not because of the words used by the ABC, but because of their own biases or prejudices.
[1]Cruddas v Calvert [2013] EWCA Civ 748, [32].
[2]Horlick v Associated Newspapers Ltd [2010] EWHC 1544, [8].
The Article did not impute that the allegations were true; to the contrary, it carefully recorded that they were no more than allegations that had been made in the course of the Proceedings. The headline and body of the Article conveyed that it was about a court being told certain things by a witness, Inspector Hall. The ordinary reasonable reader would understand that the allegations made by Witness B were at best hearsay, all entirely based on what he had been told by Andrew Veniamin, who shot Mr Peirce, and that those allegations were aired in the course of proceedings against Vincent Benvenuto and Mr Orman, in respect of crimes for which Mr Gatto was never charged despite having been questioned by police.
The Article stated, prominently, that, although he had been questioned by police, Mr Gatto had never been charged in relation to the deaths of Mr Peirce or Frank Benvenuto, and reported, correctly, that Vincent Benvenuto and Mr Orman had been charged and tried for the murder of Mr Peirce, with Vincent Benvenuto acquitted and Mr Orman convicted. Those qualifying statements provide a complete ‘antidote’ to any ‘bane’ otherwise contained in Witness B’s allegations.
Taken at its highest, the Article imputed no more than that there were reasonable grounds to suspect that Mr Gatto had threatened to kill Ms Gobbo and had been investigated, or that there were reasonable grounds to investigate him, in connection with the murders of Mr Peirce and Frank Benvenuto. There is a gulf between imputations to that effect, and the imputations upon which Mr Gatto has sued. His action fails on that basis alone.
Mr Gatto’s reliance on information in the Article as to the professional relationship between him and Ms Gobbo is misplaced. That information, whether true or false, is irrelevant to the pleaded imputations. Similarly, information about the letter sent by Ms Gobbo to Victoria Police is not relevant to any of the imputations upon which Mr Gatto has sued.
The Article reports allegations by Witness B that Mr Gatto orchestrated a ‘hit’. In evidence, Mr Gatto drew a distinction between a ‘hit man’ and a person who organises a ‘hit’. Imputation (e) that Mr Gatto is a ‘hit man’ is not a permissible nuance or variant of an imputation that a person orchestrated a ‘hit’. They are substantially different, as is obvious from the fact that the evidence relevant to the truth of each imputation would necessarily be completely different.
Analysis
Whether the meanings pleaded by Mr Gatto were in fact conveyed by the Article is to be considered from the perspective of an ordinary reasonable reader.[3]
[3]See, eg, Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, 572-3 [134] (Kirby J) (‘Chakravarti’).
Assessment of the meaning is ultimately a matter of impression, rather than close scrutiny and analysis of the Article.[4]
[4]See, eg, Lewis v Daily Telegraph Ltd [1964] AC 234, 260 (Lord Reid); Chakravarti (n 3) 573 [134] (Kirby J).
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.[5] In Chakravarti v Advertiser Newspapers Ltd, Kirby J explained:
The point of these attempts to describe the notional recipient is to conjure up an idea of the kind of person who will receive the communication in question and in whose opinion the reputation of the person affected is said to be lowered. Special knowledge is excluded. So are extremes of suspicion and cynicism (on the one hand) or naivety and disbelief (on the other).[6]
[5]See, eg, Sali v Australian Broadcasting Corporation [2013] VSC 388, [18] (Beach J); Farquhar v Bottom [1980] 2 NSWLR 380, 386 [22] (Hunt J) (‘Farquhar’).
[6]Chakravarti (n 3) 573 [134] (Kirby J) (citations omitted).
The ordinary reasonable reader has a capacity for implication that is greater than that of a lawyer.[7] 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.[8]
[7]See, eg, ibid.
[8]See, eg, Farquhar (n 5) 386 [23] (Hunt J); Chakravarti (n 3) 574 [134] (Kirby J).
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.[9]
[9]See, eg, Hardie v The Herald and Weekly Times Pty Ltd [2015] VSC 364, [46]-[51] (Whelan J) citing Cruddas v Calvert (n 1) [32]. Whelan J’s statement of principles was confirmed on appeal: Hardie v The Herald and Weekly Times Pty Ltd [2016] VSCA 103, [46].
Each pleaded meaning must be considered in the context of the entire Article.[10]
[10]See, eg, Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716, 1721 [17] (Kirby J).
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. In Mirror Newspapers Limited v Harrison,[11] Mason J explained:
The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.
In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader’s understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition.[12]
[11](1982) 149 CLR 293 (‘Mirror Newspapers’).
[12]Ibid 300–1.
In Amalgamated Television Services v Marsden,[13] Hunt CJ at CL, referring to the decision in Mirror Newspapers, further explained:
An inference is drawn from an inference when the reader, listener or viewer draws an inference which is available in the matter complained of and then uses that inference as a basis (at least in part) from which a further inference is drawn. The publisher is held responsible for the first of those inferences but not for the second because — as I have already said — it is unreasonable for the publisher to be held so responsible.[14]
[13](1998) 43 NSWLR 158.
[14]Ibid 167.
Mr Gatto relied on the following summary in relation to the distinction between investigation, suspicion and guilt by Wigney J in Rush v Nationwide News Pty Ltd (No 7):[15]
[15][2019] FCA 496, [86]-[88] (citations omitted).
86.A mere statement that a person is being investigated by the police or prosecution agencies, or that a person is suspected of committing a crime, does not necessarily impute guilt. It may convey no more than that there are reasonable grounds to suspect that the person is guilty, or that there are reasonable grounds for investigating whether the person is guilty … The question in such a case is which of the possible meanings was in fact conveyed to the ordinary reasonable reader in all the circumstances. Much will depend on the context, the words used and the information conveyed by the publication considered as a whole.
87.In that context, in Lewis v Daily Telegraph, Lord Devlin said (at 285):
It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.
88.Similarly, in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 (the facts of which, unlike Lewis v Daily Telegraph, somewhat ironically concerned a publication about a fire), Gleeson CJ, McHugh, Gummow and Heydon JJ said (at [12]):
A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise.
(Emphasis in original. Footnote omitted.)
And, in relation to the same issue, McColl J said in John Fairfax Publications Pty Ltd v Obeid:[16]
It is, in my opinion, a pious presumption to conclude that the ordinary reasonable reader is mindful of the presumption of innocence whenever accusations or allegations are made particularly when the defamatory statements are made in circumstances unrelated to, or remote from, the operation of the criminal justice system. Indeed doubts have been expressed about the proposition that the ordinary reasonable reader would be mindful of the presumption of innocence even in the context of a report of police charges. In Lewis v Daily Telegraph Ltd (at 285), Lord Devlin observed that a simple statement the “the plaintiff’s affairs are being inquired into” would not injure the plaintiff’s reputation “if everybody bore in mind, as they ought to, that no man is guilty until he is proved so but unfortunately they do not”.[17]
[16](2005) 64 NSWLR 485.
[17]Ibid 500 [70].
It is important to remember that a number of the authorities on which Mr Gatto relied were concerned with applications to strike out pleadings, which meant the court was considering whether a publication was capable of conveying a pleaded meaning. In this case I am required to consider the separate question of whether the Article did in fact convey the meanings pleaded by Mr Gatto.[18]
[18]See, eg, Jones v Skelton (1963) 63 SR (NSW) 644, 650; Lewis v Daily Telegraph Ltd (n 4) 271 (Lord Hodson); Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728, 729; Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202, [105] (Gray J).
The reader of the Article would note the following. First, the Article reports excerpts of the evidence said to have been given by Inspector Hall recorded in a Supreme Court judgment. Second, the Article reports on the relationship between Mr Gatto and Ms Gobbo by stating that Mr Gatto ‘is one of the few prominent former clients of [Ms Gobbo] who is not dead or in prison’, she continued to act on his behalf until at least November 2008, and she was close to Mr Gatto for at least four years after she started informally providing information to police. Third, the Article sets out matters which link Inspector Hall’s evidence and Mr Gatto’s relationship with Ms Gobbo to evidence given in the murder trial of Vincent Benvenuto, which include:
(a) Ms Gobbo’s letter stating she was ‘regrettably’ forced to stop her pursuit of Mr Gatto;
(b) the ABC’s understanding that this relates to evidence implicating Mr Gatto in the murders of Mr Peirce and Frank Benvenuto; and
(c) confirmation by three unidentified people that Ms Gobbo was taking credit for evidence given by Witness B about the murders.
Fourth, having established a link by this thread the Article then reports on allegations in relation to Mr Gatto said to have been made by Witness B in evidence given in the trial of Vincent Benvenuto for the murder of Mr Peirce. Finally, other information in the Article about Mr Gatto includes the description of him as an underworld and gangland figure, who is expected to be subpoenaed to the Royal Commission into Ms Gobbo’s activities as an informant, and who beat murder charges over the death of Mr Veniamin.
Each pleaded meaning is that Mr Gatto has engaged in certain criminal conduct.
Imputations (a) to (c)[19] relate directly to Inspector Hall’s evidence. The ordinary reasonable reader would understand the Article to be reporting excerpts of evidence given by Inspector Hall recorded in a 2017 Supreme Court judgment.
[19](a) Mr Gatto had threatened to kill the police informer known variously as ‘Informer 3838’ or ‘Lawyer X’ (Ms Gobbo); (b) Mr Gatto is one of Australia’s most violent criminals; (c) Mr Gatto has been proven to have organised murders in the past.
The emphasised paragraph ‘That group specifically stated that if [Ms Gobbo] were found to be a human source then [she] would be killed’ is presented as a direct quote and placed in the Article with the report of Inspector Hall’s affidavit evidence. The reasonable reader would understand this paragraph forms part of the affidavit evidence given by Inspector Hall.
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).
The remainder of the Article does not bear directly on these imputations. If any are made out, it can only be inferentially from other matters in the Article, combined with the report of evidence by Inspector Hall, and in the light of the reader’s general knowledge of worldly affairs.[20]
[20]See, eg, Farquhar (n 5) 386 [22] citing Jones v Skelton (n 18).
Mr Gatto pointed to features of the Article which raised suspicions about him, including his professional relationship with Ms Gobbo, references to him as an underworld and gangland figure, the expectation that he would be subpoenaed to appear at the Royal Commission in relation to Ms Gobbo’s role as an informer, that he ‘beat murder charges over the death of [Mr Veniamin]’, escaped multiple plots to kill him, and managed to build a significant fortune despite declaring bankruptcy. Mr Gatto faces two hurdles in relying on these matters to establish imputations (a) to (c). First, suspicion is not enough. As the ABC submitted, the meaning of each imputation is that Mr Gatto engaged in the criminal conduct, not that he was suspected of or investigated for having done so. Second, to establish any pleaded meaning by inference it is important that the matters relied on do more than raise suspicion in a general sense, or in respect of some other distinct defamatory meaning which is not pleaded, and, when considered together and in the context of the Article as a whole, bear upon the meaning sought to be established.
A reasonable reader might consider whether Inspector Hall’s evidence placed Mr Gatto in the group of ‘Australia’s most notorious and violent criminals who are proven to have organised murders in the past’. However, for reasons already stated, that is not sufficient to make out imputations (b) and (c). At most the other matters in the Article to which Mr Gatto points as raising suspicion bear only peripherally on these pleaded meanings. The reasonable reader would not understand these matters to convey that Mr Gatto was a person who had engaged in acts of violence sufficient to make out the meaning in imputation (b), that Mr Gatto is one of Australia’s most violent criminals. The one act of violence specifically reported is the shooting of Mr Veniamin, but as stated the Article records Mr Gatto was found not guilty of a resulting murder charge. The most that can be said in relation to imputation (c), that Mr Gatto has been proven to organise murders in the past, is that Witness B gave evidence to that effect. Against that the Article stated that while he was questioned by police Mr Gatto was never charged in relation to the deaths of Mr Peirce and Frank Benvenuto, and that he was acquitted on the charge of murdering Mr Veniamin on the grounds of self-defence. The statements that Mr Gatto is not in prison, and is ‘one of the great survivors of Melbourne’s underworld’ do not support a meaning that he has been proven to organise murders. Imputations (b) and (c) are not made out.
For the same reasons, and for the reasons which follow in relation to imputations (d), (d), (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)[21] 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.
[21](d) Mr Gatto was responsible for the murders of Victor Peirce and Frank Benvenuto; (e) Mr Gatto is a hit man; (g) Mr Gatto plotted to lure Victor Peirce to his death; (h) Victor Peirce was killed on Mr Gatto’s orders.
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 10 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.
Fair report defences
Because I have concluded that none of the pleaded imputations is made out it is not strictly necessary to consider the fair report defences. However, given the detailed submissions made by the parties, I will say something on the topic.
Background
Committal proceedings in respect of charges brought against Vincent Benvenuto for the murder of Mr Peirce were heard in the Magistrates’ Court at Melbourne in November 2008. A prosecution witness known as Witness B was called and adopted in evidence in chief a number of statements he had previously made about the matter. In those statements, and in cross-examination at the committal, Witness B said that Mr Gatto was involved in arrangements which led to Frank Benvenuto being shot and killed and, subsequently, arrangements for Mr Peirce to be shot and killed. At the trial of Mr Orman and Vincent Benvenuto for the murder of Mr Peirce heard in September 2009, Witness B again gave evidence that Mr Gatto was involved in arrangements to kill Mr Peirce. Witness B did not give evidence of these matters from his direct knowledge of events, but from what he said he was told by Mr Veniamin, who by that time was dead. The second and third defendants did not attend the criminal proceedings.
There were issues at the trial in relation to the evidence given by Witness B. In opening, the prosecution told the jury that because Witness B had been convicted of very serious offences they must only act on his evidence after giving it the closest scrutiny, and if they found corroboration. Witness B’s evidence in relation to Mr Gatto was not strictly relevant to the trial, and was given by him in a non-responsive way, resulting in defence counsel applying, unsuccessfully, for discharge of the jury. The manner in which Witness B gave evidence resulted in the trial judge, Weinberg J, referring to him as an ‘unguided missile’, and taking steps to limit his answers to relevant evidence.
A number of suppression orders were made in the criminal proceedings by Weinberg J.
The disclosure proceeding, heard by Ginnane J, arose from the Director of Public Prosecutions (DPP) forming the opinion that he should disclose to seven persons, all of whom had been convicted of serious criminal offences, that their barrister, Ms Gobbo, was a police informer. The main ground on which Ms Gobbo and Victoria Police opposed disclosure of the information by the DPP was what they alleged would be the resulting risk to her safety. On that issue reliance was placed on evidence of Inspector Hall as to his assessment of the risk to Ms Gobbo which would result from disclosure proposed by the DPP.
In the judgment in the disclosure proceeding, Ginnane J set out part of the evidence given by Inspector Hall, including:
177.EF [Ms Gobbo] also relied on the risks to her safety as assessed by Inspector Brooke Hall, an officer of Victoria Police of 30 years’ service. His assessment in April 2016 was that EF faced the likely risk of her murder. However, at that time, that risk was somewhat moderated by EF’s strategy of practising plausible denial and continuing her relationships with underworld figures to allay suspicion about her role in assisting police.
178.Inspector Hall considered that once the Director disclosed to the seven named persons that EF had been a police informer while acting as their legal representative, she faced an extreme risk and would almost certainly be murdered. By ‘almost certain’ was meant:
The threats will almost certainly harm the witness due to the witness’s activity. The witness is NOT compliant with ANY police instructions or witness protection treatments – will almost certainly breach police instructions or witness protection treatments. Effectiveness of police instructions or witness protection treatments will almost certainly be compromised [citing the confidential affidavit of Inspector Brooke Hall, filed 10 June 2016].
179.Inspector Hall’s risk assessment contained the following information and conclusions:
Vulnerability
Threats will remain high however, underworld criminal identities unsure if [EF] is actually a human source due to constant denials.
Likelihood
Disclosure of [EF] as a human source by OPP would remove this protection and elevate the likelihood to almost certain and raise the risk to extreme.
180.Inspector Hall identified the source of the risk to EF if the Director made the proposed disclosures, as ‘some of Australia’s most notorious and violent criminals who are proven to have organised murders in the past’. His assessment also included the following opinions:
Capability
HS 3838 [Ms Gobbo] has previously been threatened by Horty Mokbel, Mick Gatto and others. That group have specifically stated that if HS 3838 were found to be a human source then HS 3838 would be killed.
Vulnerability
These letters will become public domain. This will cause all clients of HS 3838 to question has HS 3838 informed on them. Some may seek to take revenge.
Treatments
Historic treatments used by HS 3838 to practice face to denial of assisting police and remaining in contact with underworld figures in order to allay suspicion will no longer be viable.
The most effective treatment is for the OPP not to write to these eight criminals.
Notify HS 3838 well in advance that the letters are to be sent.
There are no treatments if letter is sent given HS 3838 refuses to participate in witness protection.[22]
[22]AB & EF v CD [2017] VSC 350, [177]-[180].
Ginnane J also set out in full a letter from Ms Gobbo to an assistant commissioner of Victoria Police dated 30 June 2015, in which she listed what she said were the 10 most significant crimes and / or arrests in which she had been involved as a police informer, which included:
9.Mick Gatto and the Carlton Crew (regrettably this was a work in progress when I was handed over to Petra as a witness).[23]
[23]Ibid [19].
In the judgment ‘gangland’ is used to describe criminal activity investigated by the Victoria Police Purana Taskforce in the mid-2000s, and by Ms Gobbo in her letter referring to the gangland war.[24] The term ‘underworld’ was also used by Ms Gobbo in her letter,[25] and by Inspector Hall in evidence set out above. Neither term was used in the judgment referring to Mr Gatto.
[24]AB & EF v CD (n 22).
[25]Ibid [19].
Ginnane J’s judgment, rejecting the application by the Chief Commissioner of Police and Ms Gobbo to restrain disclosure of the information, was delivered on 19 June 2017. The Chief Commissioner and Ms Gobbo prosecuted unsuccessful appeals from that judgment before the Court of Appeal[26] and the High Court.[27] The effect of orders made in the High Court, and subsequently in the Court of Appeal, was that from 3 December 2018 the disclosure proceeding was able to be published and reported, and that from February 2019 Ms Gobbo’s identity was no longer suppressed.
[26]AB & EF v CD [2017] VSCA 338.
[27]AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58.
The second and third defendants first read the judgment of Ginnane J in the disclosure proceeding in December 2018.
Submissions
Defendants
If the Court determines that any of the pleaded meanings are conveyed by the Article, then the ABC are entitled to the benefit of complete ‘fair report defences’, namely:
(a) the defence of absolute privilege in s 4(1) of the Wrongs Act in that the Article was a faithful and accurate report of court proceedings;
(b) the defence of qualified privilege at common law in that the Article was a fair and accurate report of court proceedings;
(c) the defences in ss 28 and 29 of the Defamation Act in that the Article was a combination of a fair summary of a public document and a fair report of proceedings of public concern.
The first question is whether, having regard only to the parts of the Article which are relevant to the imputations, it is a report. The first part of the Article is immediately recognisable as a report of the disclosure proceeding. This is followed by a bridge of editorial information which is a link for the reader between the disclosure proceeding and the criminal proceedings. Information contained in the bridge is not the subject of, and is substantially irrelevant to, the defamatory imputations pleaded by Mr Gatto. Further, information contained in the bridge is clearly distinct from the report of the Proceedings, and does not constitute impermissible intermingling. The third part of the Article is clearly a report of the criminal proceedings.
Mr Gatto is newsworthy and a legitimate subject of public interest. The ABC were entitled to devote the report to those parts of the Proceedings that concerned Mr Gatto, provided that in doing so the Article was not so tendentious or otherwise slanted as to render it a distorted report. Far from being distorted, the Article was entirely accurate and correlated with what occurred in those parts of the Proceedings which were reported.
Mr Gatto’s elaborate analysis of the way in which Witness B’s evidence was treated in the criminal proceedings, used as a basis for his submission that the report was unfair, is misplaced for two reasons. First, that part of the Article is and purports to be no more nor less than a report of the allegations that were in fact made by Witness B. Second, the ABC were entitled to select for its report a part of the criminal proceedings that it assessed to be of interest to readers. The ABC was not required to provide a summary of the entire criminal proceedings, or of submissions made to, and observations made by the trial judge in relation to Witness B’s evidence. The Article is not slanted or tendentious because it is faithful to the allegations Witness B in fact made in the criminal proceedings. The Article also accurately states Witness B’s allegations were hearsay, Mr Gatto was never charged with the murder of Frank Benvenuto or Mr Peirce, and Vincent Benvenuto was acquitted of Mr Peirce’s murder. It does not matter that evidence given by Witness B, was irrelevant to the issues in dispute in the criminal proceedings.
Each relevant paragraph of the Article can be cross-referenced to the judgment in the disclosure proceeding and evidence adduced in the criminal proceedings, demonstrating it was a fair and accurate report of those parts of the Proceedings on which it purported to report. What is more, Mr Gatto accepted in cross-examination that each passage of the Article reported accurately the allegations made against him in sworn evidence in the Proceedings.
Mr Gatto relies on two factual matters in the Article which are said to be false, that he was not called as a witness before the Royal Commission, and that Ms Gobbo acted for him. However, Mr Gatto has not sued on a defamatory imputation based on these alleged inaccuracies. The fair report defences are not lost because of inaccuracies in the Article in respect of which Mr Gatto has not sued.
The fact that the Article did not distinguish between the committal and the murder trial, while it may be noted by a trained lawyer, is not relevant to an ordinary reasonable reader’s understanding that what was being reported were allegations made by Witness B in the criminal proceedings.
Mr Gatto’s complaint that the Article inaccurately and unfairly reported paragraph 180 of Ginnane J’s judgment in the disclosure proceeding, resulting in him being identified as one of Australia’s most notorious and violent criminals, should be rejected. In the judgment Ginnane J, in a single paragraph, juxtaposed the reference to the source of the risk to Ms Gobbo being from ‘some of Australia’s most notorious and violent criminals who are proven to have organised murders in the past’, and the express reference to the threat by Mr Gatto. The ordinary reasonable reader of paragraph 180 of the judgment would understand the two matters to be interrelated.
Mr Gatto’s complaint in relation to the use of the words ‘gangland’ and ‘underworld’ in the Article should be rejected. The terms were used by Ms Gobbo in the letter produced in the judgment and in passages of the affidavit of Inspector Hall reproduced in the judgment. They were not rhetorical flourishes by the ABC, but were entirely faithful to the evidence being recounted in the Article. Ginnane J himself adopted the terms in the judgment as a shorthand means of referring to the milieu in which Ms Gobbo moved.
There is no authority for Mr Gatto’s submission to the effect that to attract a fair report defence the reporter must have been in court or reviewed transcript of what happened in court. The correct test is whether the report is objectively a substantially fair and accurate summary of the proceeding. The state of mind of the reporter, contemporaneity of the report, and whether the reporter was present in court or read the transcript are entirely irrelevant matters.
Plaintiff
The fair report defences represent a restriction on what would otherwise be a plaintiff’s entitlement to sue in defamation and should be narrowly construed. It is the occasion, the court proceedings, which attracts the privilege. If a reporter obtains direct access to the court process and the court documents and makes a fair report, that should carry protection. But if the report is no more than repetition of what somebody else has written, or is coincidentally accurate, and the journalist is not actually reporting on the proceeding in some way, that does not give rise to the fair report protection. The protection does not exist for information gleaned from intermediary sources which are not themselves part of the court process.
The Article cannot be characterised as a report at all, notwithstanding the fact that it springs from court proceedings. The evidence suggests that the ABC’s knowledge of what occurred during the criminal proceedings came not from their own attendance at court but from other newspaper reports of the Proceedings. Similarly, the ABC’s references to the judgment of Ginnane J in their defence appear inapt given that the Article focuses on the affidavit of Inspector Brooke Hall with all but the barest reference to the judgment itself. The ABC did not receive or read Inspector Hall’s affidavit until after the Article was published. Likewise, the ABC admit not having attended the Supreme Court for the trial before Ginnane J. It is not clear what parts of the Article relate to which court proceeding, and whether — in the case of the disclosure proceeding — the Article is referring to evidence adduced in the proceeding or the judgment itself.
By using the disclosure proceeding as little more than a springboard for a more general story about Mr Gatto, the Article strays well beyond the scope of a fair and accurate report. In this regard, there are numerous instances where the Article contains ‘editorial’ or comment in relation to such things as:
(a) Representation of the evidence of Inspector Hall as a statement of fact when it was no more than opinion;
(b) The expectation that Mr Gatto was to be subpoenaed to appear before the Royal Commission;
(c) The understanding that there is evidence implicating Mr Gatto in the murders of Mr Peirce and Frank Benvenuto;
(d) The possible involvement of Mr Gatto in the Royal Commission, and the ABC’s suggestion that this ‘shapes as an intriguing prospect’;
(e) The sub-heading in the Article ‘Gatto’s links to Informer 3838’;
(f) The suggestion — divorced from any facts appearing in the disclosure proceeding — that Informer 3838 was ‘close to Gatto for at least four years’ and that ‘Gatto was one of her last clients’;
(g) The constant references to Mr Gatto as a gangland and underworld figure;
(h) The inaccurate way in which the Article runs together Mr Gatto as a group with Horty Mokbel and Tony Mokbel, and identifies them as some of Australia’s most notorious and violent criminals;
(i) The suggestion that ‘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’; and
(j) The bullet point notes in the margin under the headings ‘Witness B’s allegations’ and ‘Gatto never charged’.
Properly characterised the Article is not a report at all, but an investigative piece. While the Article contains information which may have been adduced in court proceedings, the fact that its broader subject matter is an investigation into Mr Gatto deprives it of the characteristic of a court report, let alone a fair report.
Justice Ginnane’s use of the word ‘also’ in paragraph 180 of the disclosure proceeding judgment shows that his Honour is talking about two disjunctive concepts, first, ‘some of Australia’s most notorious and violent criminals who are proven to have organised murders in the past’, and second, a group including Mr Gatto who Inspector Hall said had stated Ms Gobbo would be killed if she were found to be an informer. By contrast the Article runs those concepts together, identifying Mr Gatto as one of Australia’s most notorious and violent criminals, in a manner which is inaccurate and unfair.
In relation to the criminal proceedings the real vice in the Article is the way in which it uncritically adopts and repeats the assertions of Witness B. Consideration of the transcript of the criminal proceedings shows the evidence of Witness B implicating Mr Gatto was non-responsive to questions he was asked, and irrelevant to matters in issue in those proceedings. In opening in the criminal proceedings, the prosecutor told the jury they could only accept the evidence of Witness B if they gave it the closest scrutiny, and it was corroborated. During the trial there was significant debate about answers given by Witness B, leading to a description of him by the trial judge as an ‘unguided missile’, and ruling that evidence asserting Mr Gatto played any role in the commission of the offence of murdering Mr Peirce was inadmissible. This puts a totally different complexion on the evidence Witness B was trying to proffer, yet nothing about these matters was contained in the ‘report’. Further, the Article makes no mention at all of the committal hearing, referring only to the murder trial of Vincent Benvenuto. If despite these material omissions, the Article can be characterised as a report of the criminal proceedings, it is certainly not a fair or accurate or faithful one.[28]
[28]Thompson v Truth and Sportsman Limited (1934) 34 SR (NSW) 21.
Analysis
Section 4 of the Wrongs Act provides a defence to a defamation action in respect of the report of court proceedings:
(1)No action or indictment shall be maintainable against any person for publishing a faithful and accurate report of proceedings in any court of justice, or other legally constituted court or in any inquest or investigation under the Coroners Act 1985 or the Coroners Act 2008: Provided always that it shall not be lawful to publish any matter of an obscene or blasphemous nature nor any proceedings in any court which are not concluded and which the judge magistrate coroner or other presiding officer may pronounce it improper to publish at their then stage.
In the circumstances of this case there is a complete overlap between a s 4 defence and a common law qualified privilege defence that protects fair and accurate reports of court proceedings.
Reports of judgments and court proceedings are protected by ss 28 and 29 of the Defamation Act:
28 Defence for publication of public documents
(1)It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in—
(a) a public document or a fair copy of a public document; or
(b) a fair summary of, or a fair extract from, a public document.
29 Defences of fair report of proceedings of public concern
(1)It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.
For the purposes of s 28, ‘public document’ includes any judgment or determination of a court.[29] For the purposes of s 29, ‘proceedings of public concern’ include any proceedings in public of a court.[30]
[29]Defamation Act 2005 (Vic), s 28(4)(b).
[30]Ibid s 29(4)(e).
The defence is not lost because a report is inaccurate in respect of a defamatory imputation upon which the plaintiff has not sued.[31]
[31]Chakravarti (n 3) 525 [2].
The dispute as to whether a publication is a report relates to the portion of the publication which has been found to convey the defamatory imputation.[32]
[32]Rogers v Nationwide News (2003) 216 CLR 327, 334 [11] (‘Rogers’).
The defence does not extend to those parts of a publication which are the reporter’s own comment, elaboration or opinion.[33] To attract the operation of the defences the Article must be a report, that is ‘a factual recounting of an event or situation’.[34] It is not sufficient that the Proceedings are the source of information contained in the Article. To have the character of a report it is necessary that the information in the Article is attributed to the Proceedings.[35]
[33]Chakravarti (n 3) 587 [153] (Kirby J).
[34]Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313, 318 (Asprey JA) (‘Anderson’); Burchett v Kane (1980) 2 NSWLR 266, 273 (Samuels JA).
[35]Rogers (n 32) 336 [18].
It is not necessary that a report be published contemporaneously with the matter it describes.[36]
[36]See, in relation to the qualified privilege defence, Allen v John Fairfax & Sons Ltd [1971] 1 NSWLR 773, 779. The Court commented that whether a report was published contemporaneously may bear upon malice.
A report must be faithful and accurate (s 4 of the Wrongs Act) fair and accurate (common law) or fair (ss 28 and 29 of the Defamation Act). There is no dispute that for the purposes of this proceeding, there is no relevant difference between those formulations.
A report will be fair if it is a substantially accurate summary of what took place in the proceedings it summarises, even if the report is very brief.[37] In Andersonv Nationwide News Pty Ltd,[38] Asprey JA explained:
A reference to truth in this context may relate not to the accuracy of the report, but to the truth of statements made in the proceedings which are the subject of the report. Certainly the truth or falsity of those statements is not relevant in considering whether the report is fair, but this affords no ground for denying that the fairness of the report is to be ascertained by reference to the accuracy with which it records or summarizes the events which it purports to report.
…
Nor does it support the view that the fairness of the report is to be ascertained by reference to subjective considerations as, for example, the intention of the author or publisher. The fairness of the reports is to be determined objectively by comparing the report with the event or events which it purports to describe.[39]
A report need not be verbatim or a direct quotation of evidence. The protection is not lost if errors occur which do not substantially alter the impression that recipients of the publication would have received had they been present at the event described or read the original document.[40] The accuracy of the report is to be judged by the standards of the ordinary reasonable reader, not a trained lawyer.[41]
[37]See, eg, Chakravarti (n 3) 540 [42] (Gaudron and Gummow JJ), 588 [153] (Kirby J); Anderson (n 34) 313, 318, 320–1; Sands (n 18) [135], [138], [142].
[38]Anderson (n 34).
[39]Ibid 324.
[40]Chakravarti (n 3) 588 [153] (Kirby J).
[41]Ibid.
For the defence to be lost there must be some substantial misrepresentation of a material fact that is prejudicial to the plaintiff’s reputation.[42] A report which is selective will be fair as long as it expresses with substantial accuracy what took place in that part of the proceedings of which it purports to be a report, provided it is not ‘so tendentious or otherwise so slanted as to make it a distorted report of that part of the proceedings to which it relates’.[43] What is relevant is an objective comparison of the report with the record of the matter being reported upon.
[42]Ibid 525-6 [2]–[3].
[43]Ibid 588 [153] (Kirby J); Nationwide News v Moodie (2003) 28 WAR 314, 332 [78].
Intermingling extraneous materials may result in the loss of the quality of fairness.[44] However, where the Article consists first of a fair and accurate report, and second of further distinct material, the report will, other things being equal, attract the defence.[45]
[44]Curistan v Times Newspapers Ltd [2009] QB 231, 264 [95].
[45]Ibid 263 [90].
I reject Mr Gatto’s submission that the Article is not a report of the Proceedings because the evidence does not establish a connection by the second and third defendants with the Proceedings by the authors sitting in court and observing the trial, reading transcript, or some other sufficiently direct means. No authority was cited in support of this submission. To the extent the Article is identifiable as a factual description of the Proceedings, and attributes statements to the persons who made them in the Proceedings, it qualifies as a report.
In a reply filed in the proceeding, Mr Gatto pleaded that the fair report defences could not be made out because the disclosure proceedings were heard in camera and were subject to a suppression order. It was not clear that this argument was pressed by Mr Gatto in the closing address at trial, and I reject it. It was not suggested the Article breached an extant suppression order. I agree with the ABC’s submission that once Ginnane J’s judgment became available for public examination, the disclosure proceedings were relevantly open to the public.[46]
[46]Rogers (n 32) 345-6 [54]–[55] (Hayne J).
The Article clearly purports to report a part of the disclosure proceeding, that is excerpts of affidavit evidence of Inspector Hall included in the Supreme Court judgment. The matters reported are attributed to the witness. Contrary to Mr Gatto’s submission, there is no material difference between paragraph 180 of Ginnane J’s judgment and the paragraphs of the Article which report on it. In both, the matters about which Mr Gatto complains are recorded in a way which shows they are connected. In the judgment, they are included in a single paragraph, and in the Article, they are reported in successive paragraphs in the same order in which they appear in the judgment.
Mr Gatto did not identify any material inaccuracy in the report of evidence given by Witness B in the criminal proceedings contained in the Article. Most of the evidence reported in the Article was given by Witness B at the committal, either by directly answering questions he was asked or by adopting previous statements. The distinction between the committal and trial stages is not one which would substantially alter the impression which the recipient would have received of the evidence of Witness B had they been present at the criminal proceedings. I do not accept Mr Gatto’s criticism that the Article unfairly omitted the prosecution’s warning to the jury in relation to Witness B’s evidence, the unresponsive nature of his answers, and that evidence he gave about the involvement of Mr Gatto was ruled inadmissible at the trial. The ABC were entitled to choose to report a part of the criminal proceedings, that is Witness B’s evidence. The ABC fairly reported that Witness B was a former client of Ms Gobbo who was arrested on serious drug charges, and that his evidence was based on what he had been told by Mr Veniamin. The matters to which Mr Gatto refers are more relevant to the right of an accused in a murder trial than to the appreciation by a recipient of Witness B’s evidence.
If, to make out the pleaded meanings, Mr Gatto relied solely on the natural and ordinary meaning of the words used to report the Proceedings, I would have been inclined to conclude that the reports were fair, and the defences were made out. However, analysis of the fair report defences must respond to the case made by Mr Gatto that the meanings were made out inferentially, from the material in the Article beyond the reports of the Proceedings. As Brennan CJ and McHugh J said in Chakravarti:
Where a defamatory imputation is alleged to arise out of a word or phrase or its implication, it may make little practical difference whether the tribunal considers the fairness of the report before it considers the meaning of the word or phrase. But where, as is often the case, the imputation is an inference drawn from various paragraphs or sections of a publication, it invites error, in our view, to attempt to determine whether the report is fair before determining the defamatory imputation.[47]
Because I have found that none of the pleaded meanings is made out, it is not possible to identify the paragraphs or sections of the Article against which the fair report defences are to be considered or to say whether, on the meanings found, the defences fail, for example, because the report is slanted, distorted and materially inaccurate, or because the Article is infected with impermissible intermingling.
[47]Chakravarti (n 3) 526 [4].
In the circumstances, I have not determined whether any of the defences is established.
Conclusion
Having regard to the conclusion that none of the pleaded meanings is made out, it is neither necessary nor appropriate that I proceed to consider damages. The proceeding will be dismissed. I will hear from the parties as to any consequential orders.
SCHEDULE OF PARTIES
BETWEEN:
| DOMENIC GATTO | Plaintiff |
| - and - | |
| AUSTRALIAN BROADCASTING CORPORTATION | First Defendant |
| - and - | |
| NINO BUCCI | Second Defendant |
| - and - | |
| SARAH FARNSWORTH | Third Defendant |
6
14
0