Vella v Nationwide News Pty Ltd
[2000] NSWSC 614
•4 July 2000
CITATION: Vella v Nationwide News Pty Ltd [2000] NSWSC 614 CURRENT JURISDICTION: Defamation FILE NUMBER(S): SC 20474/1999 HEARING DATE(S): 26 May, 2000 JUDGMENT DATE: 4 July 2000 PARTIES :
Alex Vella - Plaintiff
Nationwide News Pty LtdJUDGMENT OF: Bell J at 1
COUNSEL : Mr T Molomby - Plaintiff
Mr Blackburn - DefendantSOLICITORS: Maurice May & Co - Plaintiff
Blake Dawson Waldron - DefDECISION:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LISTBELL J
Tuesday 4th July 2000 20474/99 - Alex VELLA v NATIONWIDE NEWS PTY LTDJUDGMENT
1 HER HONOUR: The plaintiff brings proceedings in defamation against the defendant arising out of the publication of an article in the Weekend Australian on 14 and 15 August 1999.
2 The text of the article is set out in numbered paragraphs in the Schedule to the Amended Statement of Claim. To the extent it is necessary to refer to the contents of the article I do so by reference to the paragraphs as numbered in the Schedule. In dealing with this matter I have also had access to a photocopy of the article. Mr Molomby, who appears on behalf of the plaintiff, drew my attention to the layout and appearance of the photographs which formed part of the article.
3 The plaintiff complains that the article, in its natural and ordinary meaning, conveys eight imputations defamatory of him. These are pleaded in paragraphs 4(a) to 4(h).
4 Mr Blackburn, who appears on behalf of the defendant, objects to a number of the imputations both as to their form and as to their capacity to convey the defamatory meaning for which the plaintiff contends. The parties agreed to have these objections determined separately prior to the trial of the matter pursuant to Part 31 r 2 of the Supreme Court Rules 1970.
5 Imputation 4(a) pleads:
“That he is responsible for the murder of Michael Kulakowski”
6 The defendant objects to the form and the capacity of this imputation. Mr Blackburn complains that the plaintiff has failed to identify the sense in which the word “responsible” is relied upon. It might be thought to charge that the plaintiff had a direct role in the killing of Kulakowski or to attach some ill-defined moral culpability to the plaintiff in connection with the death. Mr Blackburn referred me to Feros v West Sydney Radio Pty Limited (unreported) NSW CA, 4 March 1986 at p 5.
7 The defendant submits that a more fundamental objection to imputation 4(a) is that the matter complained of is not capable of conveying either that the plaintiff killed Michael Kulakowski or that he was in any sense responsible for the killing of Michael Kulakowski.
8 Mr Molomby points to paragraphs 4 & 5:
“But despite their similarities, there was not much love lost between millionaire Rebels boss Alex Vella and Bandidos president Michael Kulakowski.
Before Kulakowski was shot dead in a Sydney nightclub in 1997, the pair were embroiled in a bitter struggle for power that has revolutionised the way bikies do business and left as a legacy the wave of bikie gang warfare sweeping Australia”.
9 Mr Molomby submits that these two paragraphs, which appear near the commencement of the article, set the scene suggesting a motive on the part of the plaintiff to kill Mr Kulakowski. He submits that the idea is left hanging in the air that the plaintiff, as the boss of the rival gang, is in some sense responsible for the death of Kulakowski (which is described in paragraph 24). The article goes on to state that “Kulakowski was believed to be having an affair with a Rebel at the time of the shooting”. Mr Molomby submits that the appearance and layout of the photographs serve to reinforce the suggestion of the plaintiff’s complicity in the killing. A photograph of the plaintiff appears on the left hand side of the second page of the article. The plaintiff is shown pointing to his right which directs the eye to the centre of the page. A photograph of the deceased, sitting on his motorbike with his back to the camera turning slightly, is placed at the centre of the page. The caption under the photograph of Michael Kulakowski reads “Shot dead”. The caption under the photograph of the plaintiff reads “Millionaire leader … leaves the Supreme Court with his solicitor”.
10 The question which I am required to determine is whether it would be open to a jury to find that ordinary reasonable readers would have understood the matter complained of in the defamatory sense for which the plaintiff contends; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164. In deciding whether any particular imputation is capable of being conveyed the question is whether it is “reasonably so capable” (at p 165). In deciding this issue I am to bear in mind that a sensational article in a newspaper is likely to be read by the ordinary reasonable reader with relatively little analytical care. The reader of a newspaper article of this character is said to be prone to engaging in a certain amount of loose thinking; Lewis v Daily Telegraph Ltd [1964] AC 234 at 277.
11 Having regard to the whole of the article I consider that the challenge as to capacity with respect to imputation 4(a) has been made good. It seems to me wholly unreasonable (even allowing for loose thinking) to conclude from the terms of the article either by inference or implication that the plaintiff bore responsibility for the death of Michael Kulakowski. Accordingly I propose to strike out imputation 4(a).
12 Imputation 4(b) is pleaded in these terms:13 Mr Blackburn objects to the form of this imputation. He submits that the plaintiff fails to specify how it is contended that he knowingly made millions of dollars from the criminal activity alleged. It is submitted that the imputation describes a range of conduct from the most grave degree of culpability to something at the lower end of the spectrum. Mr Blackburn submits that the defendant is not to know what it needs to prove should it seek to justify the imputation. He referred me to the remarks of Hunt J (as he then was) in Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 41:
“That he has knowingly made millions of dollars from criminal activity including fraud and traffic in illegal drugs and firearms.”
“In my view, the question of whether an imputation has correctly captured the act or condition asserted of or attributed to the plaintiff is best resolved by considering what must be proved in order to justify the truth of that imputation so far as it concerns the plaintiff .”
14 The article describes the plaintiff as a person with a penchant for expensive cars and real estate. His business enterprise, the Rebels, is said to be turning a healthy profit. It goes on to assert that the plaintiff (together with Michael Kulakowski) preferred the black market to the stock exchange. He is described as the “millionaire Rebel boss Alex Vella”. In broad outline the article describes a spate of bikie gang violence in which the bigger gangs (of which the Rebels is one) have been engaged in takeovers of small gangs. This is being done in accordance with a signed agreement, Pact 2000. Under this agreement some members of some bike gangs are laundering the proceeds of a lucrative trade in drugs, fraud and firearms. The plaintiff is again referred to as the “millionaire leader” of the Rebels in paragraph 22. He is said to have made payments to the New South Wales Crime Commission under assets of crime legislation. The Commission has released other assets belonging to the plaintiff which were seized by the police in 1995 following his conviction for a marijuana related offence. It is noted that the plaintiff is a former boxer and building labourer and motor cycle importer. His assets are said to include a silver Rolls Royce, together with a villa in his native Malta, and a western Sydney home with a subdivided value of $500,000. A photograph accompanying the article bears a caption describing the plaintiff in bold as “millionaire leader”.
15 Mr Molomby submitted that the plaintiff was not able to plead with greater specificity than the material allows; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 per Gleeson CJ at 137. The matter complained of speaks in generalities concerning criminal activity including fraud, traffic in illegal drugs and firearms. I accept that the matter complained of does not admit of a greater degree of specificity with respect to the pleading of imputation 4(b). This imputation will go to the jury.
16 Mr Blackburn objected (upon the same ground) to each of imputations 4 (c), (d), (e) and (f). They are pleaded as follows:
“(c)(i) That he knowingly profits from fraud; alternatively
(ii) that he is knowingly involved in fraud; alternatively
(iii) that he wishes to be involved in fraud;
(d)(i) that he knowingly profits from dealing in illegal drugs; alternatively
(ii) that he is knowingly involved in dealing in illegal drugs;
alternatively
(iii) that he wishes to be involved in dealing in illegal drugs;
(e)(i) that he knowingly profits from illegal dealing in amphetamines; alternatively
(ii) that he is knowingly involved in illegal dealing in amphetamines; alternatively
(iii) that he wishes to be involved in illegal dealing in amphetamines;
(f)(i) that he knowingly profits from illegal dealing in firearms; alternatively
(ii) that he is knowingly involved in illegal dealing in firearms; alternatively
(iii) that he wishes to be involved in illegal dealing in firearms.”
17 Objection is taken to the form in which each of the above imputations is pleaded. Mr Blackburn submits that it is not open to plead an imputation in the alternative. The imputation is, by virtue of s 9(2) of the Defamation Act, 1974 the cause of action and a single imputation should in each case be left. Mr Molomby did not seek to argue the contrary and indicated that he would seek leave to replead each of the imputations by deleting the word “alternatively”.
18 Mr Blackburn submits that imputation 4(c)(i) is bad in form for essentially the same reasons as those advanced with respect to imputation 4(b). In this regard Mr Blackburn referred me to Armitage v Double Bay Newspapers Pty Ltd (unreported) NSWSC, Hunt J, 26 September 1991 at p 14. The challenged imputation in that case was that the plaintiff had “participated in unauthorised payments”. His Honour observed that:19 Mr Blackburn took me to the more recent decision of Jackson v TCN Channel 9 Pty Ltd (unreported) NSWSC, Levine J, 17 October 1996. The challenged imputations in that case included “that he is knowingly involved in the manufacture of illegal drugs” and “that he is knowingly involved in the distribution of illegal drugs” and “that he is knowingly involved in illegal arms traffic”. His Honour noted that the word “involvement” is capable, like the word “participated”, of conveying a variety of meanings such that its use may be ambiguous. His Honour went on to observe:
“To say that someone participated in an action may mean that he did the action himself, or it may mean that he was merely an accessory to the action of some other person by inciting, approving or assisting in that action. The use of the word “participating” without making it clear the sense in which the word is to be understood leaves it open for the plaintiff to support the capacity of the matter complained of to convey the imputation in question upon the basis that it means only, for example, that the plaintiff approved of the action but did not himself do that action, yet leave the jury with the impression that the part played by the plaintiff was somewhat greater, and (if truth is pleaded as a defence) to shift his or her ground as to its meaning according to the nature of the evidence produced by the defendant”.
“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.” (at p 4)
20 Mr Blackburn submitted that a distinction to be drawn between the present case and Jackson is that in the latter the imputation did, in each case, identify the way in which the plaintiff was said to be knowingly involved in the subject illegal activity. Mr Blackburn submits that imputation (c)(i) might be thought to be broader than those which Levine J permitted to go to the jury in Jackson.
21 I do not accept that the challenge to the form of imputation 4(c)(i) has been made good. I consider that the matter complained of does not allow of any greater degree of specificity in pleading.
22 Generally, Mr Blackburn submits that the imputations pleaded in paragraphs (c)(i) - (iii) to (f)(i) - (iii) should be struck out on the ground that none are capable of being conveyed by the matter complained of.
23 The matter complained of describes the plaintiff as the boss of the Rebels. It goes on to state that the head of the Rebels was a signatory to an agreement known as “Pact 2000”. Under that agreement “the share market, real estate and overseas bank accounts are increasingly used by some members of some gangs to launder the proceeds of a lucrative trade in drugs, fraud and firearms (para 13).” The NCA annual report is suggested to confirm drug activity and firearms offences as being among the gangs’ main preserve. A report compiled by Australian and New Zealand Police is said to suggest that the plan to reduce Australia’s gangs to a small number may centralise the criminal activities of some gang members, including in the lucrative amphetamine trade. “Some members of some gangs were said to be heavily involved in the manufacture and illegal sale of drugs, including ecstasy, meth and ice” (para 17).
24 Mr Blackburn submits that it appears that the agreement, Pact 2000, signed by the plaintiff was an agreement between a number of gang heads to take over smaller bikie groups (para 7). When one moves to para13, what is stated is that some members of some gangs are making use of this agreement in connection with a lucrative trade in drugs, fraud and firearms. Mr Blackburn submits it is drawing too long a bow to infer, firstly, that the Rebels are one of the gangs referred to and secondly that the plaintiff is a person caught by the reference to some members of some gangs laundering the proceeds of criminal activity.
25 Mr Molomby submits that viewed as a whole, the matter complained of portrays the plaintiff as the boss of the Rebels, said to be the fastest growing of the bike gangs. He signed Pact 2000. The real business of Pact 2000 is said to be the laundering of the proceeds of a lucrative trade in drugs, fraud and firearms. It is necessarily implied that as the boss of the Rebels the plaintiff knows what is going on and takes part in it. This is particularly so when one has regard to the repeated references to him as a millionaire and to the account of his assets and his difficulties with the NSW Crime Commission. Mr Molomby submits that the Rebels as a group is portrayed as a criminal organisation and the defendant cannot walk away from the taint which attaches to the plaintiff by pointing to the coy reference to “some members of some gangs” in paragraph 13.
26 I note that the natural and ordinary meaning of the matter complained of may be either its literal meaning or that which is implied by it or inferred from it; Jones v Skelton (1963) 63 SR(NSW) 644 at 650. Having regard to the principles set out in paragraph 10 above I consider that the matter complained of is reasonably capable of conveying each of the imputations pleaded in paragraphs (c)(i) - (iii) to (f)(i) - (iii). In their present form the imputations will be struck out (for the reasons noted in paragraph 17 above). I grant leave to replead imputations 4(c)(i) - (iii) to 4(f)(i) - (iii) inclusive.
27 Imputations 4(e)(i) - (iii) were the subject of objection upon the basis that these imputations give not differ in substance from those pleaded in paragraph 4(d)(i)-(iii). Imputation (e) takes up the concept of illegal dealing in amphetamines whereas imputation (d) is expressed more generally in terms of dealing in illegal drugs. There is reference to the reduction in number of bike gangs leading to the centralising of criminal activities of some gang members, including the lucrative amphetamine trade (para 15). There is also reference to some members of some gangs being heavily involved in the manufacture and illegal sale of drugs including ecstasy, meth and ice (para 17). Mr Molomby submits that the two imputations differ in substance. He submits that it is open to the plaintiff to plead an imputation embracing illegal drugs generally and a separate imputation directed to amphetamines. He submits that profiting or otherwise dealing in amphetamines might be viewed as a more damning activity than profiting or otherwise dealing in other categories of illegal drugs. Although there was a degree of overlap between the imputations, it was submitted that they did not cover precisely the same ground. I consider that there is force to that submission. Imputation 4(e) in my view does differ in substance from imputation 4(d).
28 Imputation 4(g) is pleaded in these terms:
“That as leader of the Rebels bikie gang he is party to an agreement signed in 1997 to obtain for himself and others management of criminal activities including fraud and trade in illegal drugs and illegal dealing in firearms".
An objection was taken as to the capacity of the matter complained of to convey an imputation pleaded in these terms.
29 Mr Blackburn submits that the article does not assert that the purpose of the agreement is the control of or management of criminal activity. It is said that the agreement is being used by some members of some gangs to pursue those aims. In this regard he points to the terms of para 13.
30 Paragraph 13 needs to be read in its context. As I have noted above, the article commences by a reference both to the plaintiff as the boss of the Rebels and Michael Kulakowski as the boss of the Bandidos and to their rivalry. After describing Pact 2000 signed by gang heads, including the Rebels and the Bandidos, there is a discussion of a recent wave of bikie violence. Para 13 needs to be read in conjuction with the preceding paragraph:
“But for a new generation of gang bosses, some with the megalomania and acumen of corporate business executive officers, quelling the heat from the street level violence they inspire is an irritating diversion from the real business of Pact 2000.
Under the agreement, the share market, real estate and overseas bank accounts are increasingly used by some members of some gangs to launder the proceeds of a lucrative trade in drugs, fraud and firearms.”
31 When read together it might be thought that article is describing the trade in drugs, fraud and firearms as the real business of Pact 2000. The plaintiff is a signatory to Pact 2000. The ordinary reasonable reader is said to be a person capable of reading between the lines in the light of his or her general knowledge and experience of worldly affairs; Farquhar v Bottom [1980] 2 NSWLR 380 at 386. To my mind the article is capable of conveying the imputation pleaded. Imputation 4(g) will go to the jury.
32 Imputation 4(h) is pleaded in these terms:
“That as leader of the Rebels bikie gang he is party to an agreement signed in 1997 by which he seeks to facilitate the laundering by club members of the proceeds of fraud and trading in illegal drugs and illegal dealing in firearms”.
33 Mr Blackburn objected to this imputation upon grounds broadly similar to those taken with respect to imputation 4(g). Both imputations he submits suffer the vice that one is required to draw an inference upon an inference. Firstly, it is necessary to infer that the Rebels was one of the clubs using the agreement for the stated purpose and, having drawn that inference, it is necessary to draw the further inference that the plaintiff is one of the members of the club doing those things. Again, when one views the article as a whole, and in particular the contents of paragraph 12 in association with paragraph 13, it seems to me that the imputation pleaded is reasonably capable of being conveyed. Accordingly, both imputations 4(g) and 4(h) will go to the jury.
34 Overall the plaintiff has had a substantial measure of success in resisting the challenges advanced. I consider the appropriate order with respect to costs is that the defendant should pay the plaintiff’s costs of the trial of these issues.
ORDERS:1. Imputation 4(a) is struck out.
2. Imputation 4(b) will go to the jury.
3. Imputation 4(c) is struck out. The plaintiff is given leave to
replead imputation 4(c) (i),(ii) and (iii).4. Imputation 4(d) is struck out. The plaintiff is granted leave to
replead imputation 4(d)(i), (ii), (iii).5. Imputation 4(e) is struck out. The plaintiff is granted leave to
replead imputation 4(e)(i),(ii),(iii).6. Imputation 4(f) is struck out. The plaintiff is granted leave to
replead imputation 4(f)(i), (ii), (iii).7. Imputation 4(g) will go to the jury.
8. Imputation 4(h) will go to the jury.
9. The proceedings are stood over to the Defamation List on Friday
10. The defendant is to pay the plaintiff’s costs as agreed or assessed.
7 July 2000 for further directions.
0
4
0