BYRNES v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 575

New South Wales Supreme Court

CITATION : BYRNES v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 575 HEARING DATE(S) : 23 June 2003 JUDGMENT DATE : 23 June 2003

JUDGMENT OF : Levine J DECISION : 1 The plaintiff has leave to file an amended statement of claim within 14 days.; 2 The plaintiff has failed on the two principal issues argued and is to pay the defendant's costs. I will place the matter in the Registrar's directions list on 11 July.

CATCHWORDS : Imputations - capacity - form CASES CITED : Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 JIM BYRNES (Plaintiff)

PARTIES : v

JOHN FAIRFAX PUBLICATIONS PTY LTD (Defendant) FILE NUMBER(S) : SC 20047 OF 2003 C Evatt (Plaintiff) COUNSEL : T Blackburn (Defendant) John Cunningham (Plaintiff) SOLICITORS : Freehills (Defendant)

Ex tempore - revised [2003] NSWSC 575 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUSTICE DAVID LEVINE

MONDAY 23 JUNE 2003

20047 OF 2003

JIM BYRNES (Plaintiff)

v

John Fairfax Publications Pty Ltd (Defendant)

JUDGMENT (Imputations – capacity – form) 1 On Monday 7 October 2002, in its News Review section, the Sydney Morning Herald published an article of some length bearing the principal headline "Caveat vendor". 2 The matter complained of, as appended to the statement of claim, is approximately 45 paragraphs and includes a photograph of the plaintiff and a caption. 3 In very general terms, for the purposes of the present application, the article is concerned with the intention of the plaintiff to be involved in a fine art auction house which, at the time of the publication of the matter complained of, was still to be opened. 4 The plaintiff pleads the following imputations as arising from this article: (a) The vendors should beware of the plaintiff; (b) The plaintiff uses his auction house to launder money for the Mafia; (c) The plaintiff is associated with some of Sydney's leading underworld figures; (d) Vendors who sell goods through the plaintiff's auction house are at risk of not being paid; (e) The plaintiff cannot be trusted to conduct his auction business honestly. 5 Imputation (e) is not in issue. 6 Objection is taken to imputation (a) on the basis that it captures no precise act or condition. The bare statement that "vendors should beware of the plaintiff", it is argued, connotes or could connote a wide range of acts or conditions in the plaintiff ranging from the seriously defamatory to that which is marginally so as it is described. 7 It could range from the plaintiff's auction house not being likely to be successful in the commercial sense, or a desirable repository of the works for sale. At the other extreme, it could point to a high level of personal dishonesty, if not fraudulent conduct. It is thus argued for the defendant that the imputation has the quality of vagueness of the kind quite commonly associated with the use of the word "corrupt" and thus attract the observations Gleeson CJ made in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137-139. 8 For the plaintiff, it is argued as to this component of the defendant's position, whilst not ignoring the whole of the matter complained of, a course which cannot be taken, and whilst not setting aside the tenor thereof, the plaintiff is by reference to both, in a position where he can do no more, it is said, than formulate an imputation that does no more than capture the generality that leaps out from the headline "Caveat vendor". 9 The submissions for the defendant, I must say, find favour. If one does pay heed to the whole of the matter and its tenor, something more than the generality of caveat vendor is exposed. That something more points with a degree of particularity to specific risks in relation to the placement of works for sale with the plaintiff in terms of, and to me though I am not the pleader, the likelihood of either not being provided with the proceeds upon the goods successfully being auctioned or possibly the return of them upon failure attending the auction. 10 I strike out as bad in form imputation 3(a). I grant leave to the plaintiff to replead. 11 However, the granting of that leave points to the risk constituted by the second leg of the defendant's argument in relation to 3(a): that its proper particularisation might bring it about that it would fall foul of SCR Pt 67 r 11(3), vis-à-vis imputation (d). 12 I turn to imputation (b) as proposed. This imputation is the subject of what is described as a simple capacity argument and by consent, pursuant to Pt 31 r 2, that has taken place. 13 The plaintiff relies on paragraphs 1 to 6 especially in support of this imputation. Those paragraphs are in the following terms: "1 Caveat vendor 2 The owner of a new fine-art auction house opening in Sydney has a colourful background, writes Paul Barry 3 Big Jim Byrnes must have a sense of humour. If asked why he chose the name Cromwell's for his fine-art auction house which opens its new salerooms this week, he tells people he got the mama from the film Mickey Blue Eyes. 4 For those who can't see the joke, the auction house in the move – also called Cromwell's – launders money for the mob by selling art works to the Mafia at vastly inflated prices. Naturally, it also pockets handsome fees for providing the service. 5 In view of Byrnes's association with some of Sydney's leading underworld figures – which landed him on the cover of a recent Good Weekend – it's a bold move for Byrnes to draw attention to himself in this way. But he obviously couldn't help himself. 6 Last week, the property developer admitted that Mickey Blue Eyes was indeed his inspiration, but insisted it was the traditional connotations of the Cromwell name that had attracted him. "Oliver Cromwell was around in 1640," said Byrnes, "which is 100 years older than Sotheby's"". 14 The qualities of the ordinary reasonable reader are well-known. That person is taken to have read the whole of this matter which, not unfairly one might think, Mr Evatt has described as a very strong piece. But could that ordinary reasonable reader, reading the whole of it and having been introduced to the whole of it by paragraphs 1 to 6 especially, really and reasonably understand the article to be saying that the plaintiff intends to use his auction house to launder money for the Mafia? 15 The name of the proposed auction house is Cromwell's, a name which the article indicates the plaintiff as having been inspired to adopt by reference to a movie, "Mickey Blue Eyes", in which, the article says, an auction house with the same name laundered money for the mob by selling art works, et cetera, as per paragraph 4 above. 16 In relation to Cromwell's, the article also states in addition to the acknowledgment of inspiration in Mr Byrnes, that really he insisted that it was the traditional connotations attached to the name of Cromwell that attracted him. Historically Oliver Cromwell "flourished", (my word), one hundred years before the establishment of perhaps the best known auction house in the world, namely Sotheby's, an institution which, the article informs the reader, Mr Byrnes has "in his sights". 17 The particular paragraphs relating to Cromwell's, "Mickey Blue Eyes", the Mafia, inspiration and ambition, I am of the view could be understood by the ordinary reasonable reader as light in tone, if not as a joke, or essentially humorous. 18 Whilst there is a reference in the article to what is said to be the plaintiff's association with some of Sydney's leading underworld figures, I am not persuaded that that statement in that part of the article viewed against the whole of it reasonably can give rise to imputation (b) as proposed. For a reader, having read the whole of the article introduced to it by paragraphs one to six, to come to the conclusion that the piece is saying that the plaintiff intends to use his auction house to launder money for the Mafia represents that extreme, unreasonable understanding which falls without the usual description of such a reader. 19 I hold as a matter of law the article is incapable of carrying an imputation in terms, "The plaintiff intends to use his auction house to launder money for the Mafia". 20 Thus, at the end of the exercise, imputation 3(a) has been struck out with leave to amend, imputation 3(b) as reformulated has been found to be not to be capable of being carried by the matter complained of and there thus remains imputations (c), (d) and (e). 21 The plaintiff has leave to file an amended statement of claim within 14 days. 22 The plaintiff has failed on the two principal issues argued and is to pay the defendant's costs. I will place the matter in the Registrar's directions list on 11 July. **********