Vella v John Fairfax Publications Pty Ltd

[2000] NSWSC 615

CITATION:	Vella v John Fairfax Publications Pty Ltd [2000] NSWSC 615
CURRENT JURISDICTION:	Defamation
FILE NUMBER(S):	SC 20473/1999
HEARING DATE(S):	26 May 2000
JUDGMENT DATE:	4 July 2000
PARTIES :	Alex Vella - Plaintiff John Fairfax Publications Pty Limited - Defendant
JUDGMENT OF:	Bell J at 1

COUNSEL :	Mr T Molomby - Plaintiff Mr Blackburn - Defendant
SOLICITORS:	Maurice May & Co - Plaintiff Richard Coleman - Defendant
DECISION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DEFAMATION LIST

BELL J

Tuesday, 4 July 2000

20473/99 - Alex VELLA v JOHN FAIRFAX PUBLICATIONS PTY LTD (ACN 003 357 720

JUDGMENT

1    HER HONOUR: The plaintiff brings proceedings in defamation against the defendant arising out of the publication of an article in the Sydney Morning Herald on 10 August, 1999. The article is reproduced in numbered paragraphs in the Schedule to the Amended Statement of Claim. It is contended that the article in its natural and ordinary meaning conveys seven imputations defamatory of the plaintiff. They are set out in paragraph 4(a) - (g) of the Amended Statement of Claim.

2 The defendant objects to each of the imputations pleaded upon the basis that the article is not reasonably capable of conveying such imputations. The parties have agreed to the separate determination of these issues prior to the trial of the matter pursuant to Part 31 r 2 of the Supreme Court Rules 1970.

3    Imputation 4(a) is pleaded in these terms:-

“That as boss of the Rebels bikie gang he has knowingly obtained millions of dollars through criminal activity including illegal traffic in amphetamines, suburban prostitution and tow-truck rackets”.

4    Mr Blackburn submits that the link between the plaintiff and the assertions set out in paras 7 & 8 of the matter complained of is tenuous. In determining whether an imputation is capable of being conveyed, Mr Blackburn reminded me that the touchstone is one of reasonableness; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165.

5    The article features a photograph of the plaintiff in front of the Rebels’ banner, the caption reads “Bikie Business … Alex Vella at the Rebels’ Clubhouse in Horsley Park”. The article commences by a description of the plaintiff as “[t]he millionaire boss of the Rebels bikie gang”. The plaintiff is quoted as describing recent episodes of biker related violence as being minor domestic matters. The quotation concludes with the plaintiff saying “It has nothing to do with the clubs, my friend”. The article goes on to say this:

“But police and criminal sources are not so sure. They believe a massive recruitment drive by Australia’s two largest gangs, The Rebels and The Bandidos, and a fight over the lucrative amphetamines trade is responsible for the tit-for-tat violence between the two clubs.
Both gangs have increased their membership base and are fighting it out ‘toe-to-toe’ for control of drug markets, suburban prostitution and other side rackets, such as control of the tow-truck industry.”

6    Mr Blackburn submits that the imputation pleaded requires a forced and wholly unreasonable interpretation of the article. I do not agree. Central to the article is the concept that the Rebels is one of two gangs engaged in a fight for control of drug markets (including the amphetamines trade) suburban prostitution and rackets such as control of the tow-truck industry. The description of the plaintiff as “the millionaire boss” in the context of the article is significant. Mr Molomby, who appears for the plaintiff, submits that the ordinary reasonable reader would readily infer that activities engaged in by the gang are activities engaged in by the boss of the gang. I consider there is force to that submission.

7    In deciding whether the article is capable of conveying the defamatory imputation pleaded I should reject the meaning which might only emerge as the product of some strained, forced or utterly unreasonable interpretation of it; Jones v Skelton (1963) 63 SR(NSW) 644 at 650. The ordinary and natural meaning of words may be either the literal meaning or the meaning which is implied or inferred.

8    I consider that the article is reasonably capable of conveying the imputation pleaded. Imputation 4(a) will go to the jury.

9    Imputations 4(b),(c) and (d) were the subject of an objection in similar terms. Those imputations are pleaded in these terms:

“(b) That as boss of the Rebels bikie gang he is knowingly involved in the illegal trade in amphetamines;
(c) that as boss of the Rebels bikie gang he is knowingly involved in suburban prostitution;
(d) that as boss of the Rebels bikie gang he is knowingly involved in two-truck rackets.”

10    Objection was taken to each of these imputations upon the basis that they were uncertain. The pleader had not identified with precision how it was contended that the plaintiff was “knowingly involved” in each of the specified activities. Further, the plaintiff had failed to identify how it was contended that the description of him as “boss of the Rebels bikie gang” was significant to his knowing involvement in each of the activities. I consider that the observations of Levine J in Jackson v TCN Channel 9 Pty Ltd (unreported) 17 October 1996 at p 4 apply with equal force to the circumstances of this case. The matter complained of identifies general categories of illegal conduct. It does not detail individual illegal transactions or set out to describe the plaintiff’s modus operandi in any case. I respectfully adopt his Honour’s observation:

“If the general tenor and thrust of the disparagement in the publication can support the notion of knowingly being involved in, for example, the distribution of illegal drugs and no more, then the plaintiff in my view is entitled to so plead, and can be required to plead no more.”

11    I do not consider that the formulation, as “boss of the Rebels bikie gang”, in each case, introduces uncertainty into the pleaded imputation. In each case it is contended that the plaintiff’s knowing involvement in the specified activity derives from his position as boss of the Rebels bikie gang.

12    I reject the challenge to capacity with respect to imputations 4 (b) & (c). Mr Blackburn developed a further argument going to capacity with respect to imputation 4(d). He submits that the matter complained of makes no reference to tow-truck rackets. I do not consider that this submission has merit. Control of the two-truck industry is instanced as a “side racket” in para 8. I also reject the challenge to capacity with respect to imputation 4(d).

13    Imputations 4(b),(c) and (d) will go to the jury.

14    Imputations 4(e) and (f) are the subject of objection (upon the same basis). They are pleaded as follows:

“(e) That as boss of the Rebels bikie gang he is attempting to gain control of some of the illegal trade in amphetamines in several states of Australia;
(f) that as boss of the Rebels bikie gang he is attempting to gain control of some of the traffic in illegal drugs, some suburban prostitution, and some other criminal activity in several states of Australia.”

15    Mr Blackburn submits that the matter complained of is not capable of conveying in either case that the plaintiff is attempting to gain control of the subject activity.

16    The tit-for-tat violence between the Rebels and the Bandidos is said to be the product, both of a massive recruitment drive by each of those gangs and of a fight over the lucrative amphetamine trade. The gangs are said to be fighting it out for control of drug markets, suburban prostitution and other side rackets. I accept the submission that in the context of the whole of the matter complained (including the photograph accompanying the text) that the assertion that the Rebels and Bandidos are presently engaged in a struggle for control of various illegal activities is capable of conveying that the boss of the Rebels bikie gang is attempting to gain control of the same.

17    Imputations 4(e) and (f) will go to the jury.

18    Imputation 4(g) is pleaded in these terms:-

“That as boss of the Rebels bikie gang he is party to an agreement signed in 1996 to centralise under the control of himself and some others criminal activity including traffic in illegal drugs, suburban prostitution and tow-truck rackets in several states of Australia”.

Mr Blackburn takes an objection as to the capacity of the matter complained of to convey this imputation. The agreement signed in 1996 is said to have been made between the biggest clubs including the Rebels. Its purpose is described as a bid to centralise criminal activity (para 9). The type of criminal activity is described as control of drug markets, suburban prostitution and other side rackets such as control of the tow-truck industry. Again, having regard to the content of the article as a whole and in the light of the accompanying photograph of the plaintiff I consider that the imputation is reasonably capable of being conveyed. Imputation 4 (g) will go to the jury.

ORDERS

1. Imputation 4(a) will go to the jury.

2. Imputation 4(b) will go to the jury.

3. Imputation 4(c) will go to the jury.

4. Imputation 4(d) will go to the jury.

5. Imputation 4(e) will go to the jury.

6. Imputation 4(f) will go to the jury.

7. Imputation 4(g) will go to the jury.

8. The proceedings are stood over to the Defamation List on Friday 7 July 2000 for further directions.

9. The defendant is to pay the plaintiff’s costs as agreed or assessed.

Last Modified: 09/26/2000