Gatto v Australian Broadcasting Corporation - [2021] VSC 83

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…

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.

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Details

Case: [2021] VSC 83
Decision Date: 26 February 2021

CaseChat Overview and Summary

In the Federal Court of Australia, Gatto commenced proceedings against the Australian Broadcasting Corporation (ABC) for defamation. Gatto alleged that an online publication by the ABC conveyed meanings defamatory of him. The publication in question reported evidence given in court proceedings. The case proceeded to determine whether the pleaded meanings were conveyed by the publication.

The court was required to decide if the publication conveyed the meanings that Gatto alleged were defamatory. Specifically, these meanings pertained to criminal conduct. The court had to assess whether the publication, as a fair and accurate report of the court proceedings, conveyed these defamatory meanings. The court considered relevant case law, including the principles established in Mirror Newspapers Limited v Harrison, Amalgamated Television Services v Marsden, Rush v Nationwide News Pty Ltd, John Fairfax Publications Pty Ltd v Obeid, Anderson v Nationwide News Pty Ltd, and Chakravarti v Advertiser Newspapers Ltd. These cases provided guidance on the standards for determining whether a report of court proceedings is fair and accurate and whether it conveys defamatory meanings.

The court found that the pleaded meanings were not conveyed by the publication. The report was considered to be a fair and accurate account of the court proceedings, and it did not suggest the criminal conduct attributed by Gatto. Therefore, the publication did not convey the defamatory meanings. The court did not determine the fair report defences as it found that the defamatory meanings were not conveyed. The court dismissed Gatto's claim for defamation.

The court ordered that Gatto pay the ABC's costs of the proceedings. This included costs associated with the defence of the fair report defences, which were not finally determined but were considered in the course of the case.

Orders