Vella v TCN Channel 9 P/L [2000] NSWSC 759

New South Wales Supreme Court

CITATION : Vella v TCN Channel 9 P/L [2000] NSWSC 759 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20340/96 HEARING DATE(S) : 21/07/00 JUDGMENT DATE : 3 August 2000

PARTIES : Alex Vella (Pl) TCN Channel 9 Pty Limited (Def) JUDGMENT OF : Kirby J

COUNSEL : T Molomby (Pl) R G McHugh (Def) SOLICITORS : Maurice May & Co (Pl) Gilbert & Tobin (Def) CATCHWORDS : DEFAMATION - Capacity of material to carry contextual imputations - General and specific imputations LEGISLATION CITED : Defamation Act, 1974 - s16 Supreme Court Rules - Pt15, Pt67 Marsden v Amalgamated Television Services P/L (Levine J, unreported, 4/5/98) Feros v West Sydney Radio P/L (C of A, unreported, 22/6/82) Drummoyne Municipal Council v Australian Broadcasting Corp (1990) 21 NSWLR 135 CASES CITED : Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 Hepburn v TCN Channel 9 P/L (1984) 1 NSWLR 386 Singleton v John Fairfax & Sons Ltd (Hunt J, unreported, 20/8/80) NRMA Insurance Ltd v Amalgamated Television Services P/L (Hunt J, unreported, 14/7/89) DECISION : Ref para 47

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

KIRBY J

Thursday 3 August 2000

20340/96 - ALEX VELLA v TCN CHANNEL NINE PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is an application by the plaintiff to strike out imputations relied upon by the defendant in support of a defence of contextual truth (s16 Defamation Act, 1974). 2 On 1 January 1996, TCN Channel Nine Pty Limited broadcast a programme, "A Current Affair". The programme was introduced by Mr Mike Munro with these words: "First up though Australia's biggest criminal investigation of this or any other year. Every major law enforcement agency you can think of is involved from State and Federal Police to the Tax Department, Customs and Immigration. Their target is not one organisation but many. Outlaw bikie groups who control a huge slice of our illegal drug trade as well as gun running." 3 Mr Munro then interviewed Mr Peter Cleland, a Federal Member of Parliament. Mr Cleland was a member of a committee briefed by the National Crime Authority ("NCA") on the investigation. The segment also included a former member of a motorcycle gang, who was assisting the National Crime Authority. This person was introduced with these words: "MUNRO: The NCA is now targeting the bikie gangs' major form of income, drugs. CLELAND: They're primarily responsible for the amphetamine trade, both manufacture and distribution of amphetamines. MUNRO: The major producers. CLELAND: The major producers in Australia. MUNRO: That's big money. CLELAND: Oh, it's huge money." 4 The programme, at this point, showed the plaintiff, Mr Alex Vella, and his wife, outside the Campbelltown Court House, and their home. An unidentified voice said this: "Here's Alex." 5 The programme continued with these words: "MUNRO: In October last year Alex Vella, president of Australia's biggest and most feared gang, the Rebels, was found guilty of possessing fifteen thousand dollars worth of marijuana found in his home here outside Sydney. The forty two year old millionaire was ordered to serve eighteen months periodic detention. MAURICE MAY: Mister Vella's proud of the support which his friends and the community have shown to him. He had fifty nine testimonials which were obviously listened to very attentively by the Judge. (Vision - Vehicles, bikes) MUNRO: But once Vella was convicted that meant the National Crime Authority could raid his properties and restrain his assets until he proves they were not the proceeds of crime. Seized by the National Crime Authority were forty four Harley Davidsons, two Rolls Royces, four Corvettes, a Mercedes and a Bentley, total value of the raid three million dollars. MUNRO: How important is legislation to restrain all assets? CLELAND: One of the greatest things we've done. So when you get them and you convict them take it all away and that's a very powerful lesson and it helps us get money also to fight them. (Vision - Rifles, hand guns, explosives) " 6 The plaintiff relies upon a number of imputations. The capacity of the programme to give rise to these imputations was considered by Levine J. On 17 October 1996 his Honour determined that they were capable of arising. As a consequence of that judgment, the plaintiff has refined the wording of the imputations. They are to be incorporated in an Amended Statement of Claim. The imputations, as amended, are as follows: "(a) that he controls a substantial part of the illegal manufacture and distribution of amphetamines in Australia. (b) that he controls a substantial part of illegal arms trafficking in Australia. (c) that he engages in the illegal manufacture and distribution of amphetamines in Australia. (d) that he engages in illegal arms trafficking in Australia. (e) that he is willing to murder to advance his criminal purposes of illegal manufacture and distribution of amphetamines and illegal arms trafficking. (f) that he is willing to rape. (g) that he has derived assets worth millions of dollars from illegal activity such as trafficking in illegal drugs and arms." 7 The defendant has filed an Amended Defence. There is no plea of justification (s15). There is, however, a plea of contextual truth (s16). The contextual imputations, said to arise from the natural and ordinary meaning of the word, are as follows: "(i) the plaintiff is the leader of a bikie gang; (ii) the plaintiff is a criminal; (iii) the plaintiff is a convicted drug dealer; (iv) the plaintiff has been convicted of dealing in one kilogram of illegal drugs; (v) the plaintiff has been convicted of dealing $15,000 worth of illegal drugs; (vi) the plaintiff has been convicted of dealing a commercial quantity of illegal drugs; (vii) the plaintiff has behaved in such a manner as to give rise to the reasonable suspicion on the part of the National Crime Authority that he has committed serious criminal offences; (viii) the plaintiff has behaved in such a manner as to cause the National Crime Authority to restrain the plaintiff's property and seize 40 motorcycles, 2 Corvette cars, 2 Rolls Royce cars, 1 Mercedes car and 1 Bentley car from the plaintiff as suspected proceeds of crime." 8 The plaintiff challenges each contextual imputation. It is convenient to deal first with imputation (ii). Others will be dealt with in groups, since they give rise to common issues.