John Casella v Fairfax Media Publications Pty Ltd & Ors [2011] NSWSC 1256

Supreme Court New South Wales

Medium Neutral Citation: John Casella v Fairfax Media Publications Pty Ltd & Ors [2011] NSWSC 1256 Hearing dates: 10.10.11 Decision date: 27 October 2011 Jurisdiction: Common Law Before: Nicholas J Decision: Par 30 Catchwords: DEFAMATION - pleadings - imputations - question of capacity Cases Cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Heath v Fairfax Media Publications Pty Ltd & Anor [2011] NSWSC 742 McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308 Category: Interlocutory applications Parties: John Casella - plaintiff Fairfax Media Publications Pty Ltd - first defendant Fairfax Digital Australia and New Zealand Pty Ltd - second defendant Jason Koutsoukis - third defendant Kate McClymont - fourth defendant Representation: Counsel: M Richardson - plaintiff D Sibtain - defendants Solicitors: Kennedys - plaintiff Johnson Winter & Slattery - defendants File Number(s): 11/234805

Judgment 1In these proceedings the plaintiff sues the first, third and fourth defendants for damages for defamation arising out of the publication in the weekend edition of the newspaper "The Sydney Morning Herald" of 30 and 31 October 2010 of an article under the heading "Lawyers, guns, money: the sting in the Yellow Tail" (the article). The plaintiff also claims damages against all defendants arising out of the publication on 30 October 2010 on the Sydney Morning Herald website of an article under a similarly worded heading. 2In par 6 of the amended statement of claim filed 10 October 2011 it is pleaded that the article, in its natural and ordinary meaning, conveyed the following imputations defamatory of the plaintiff: "(a) The plaintiff is a member of the Mafia; (b) As a member of the Mafia, the plaintiff built his business interests on the foundation of organised crime and murder; (c) The plaintiff is the managing director of a winery which is a front or pretence for the Mafia and organised crime; (d) The plaintiff is the head of a Calabrian Mafia cell in Griffith; (e) The plaintiff deceitfully pays for philanthropy in the name of his family in order to cover up his family's criminal activities." 3In par 7 two imputations, as true innuendoes, were pleaded namely an imputation in terms of imputation (c) above, and an imputation that: "(f) The plaintiff controls a business with unusually diverse interests to disguise money laundering from criminal activities." Particulars of the facts and matters relied upon to establish the true innuendoes were: "... the movies in the trilogy of 'The Godfather' in which legitimate business interests are depicted as providing a front or pretence for organised crime, murder and money laundering by the Mafia". The particulars included the assertion that: "The class of persons to whom the above facts and matters were known were those persons in Australia who have seen one or all of 'The Godfather' movies ..." 4With respect to the website publication the plaintiff pleaded (pars 9, 10) reliance upon the imputations in pars 6 and 7 respectively. 5The defendants applied to strike out the imputations on the ground that each was incapable of being conveyed by the article. No separate submissions were made with respect to the imputations alleged to arise from the website publication, presumably on the common understanding that their fate should be the same. 6During the hearing, counsel for the plaintiff stated that imputation (d) was not pressed. It will be struck out. At the end of the hearing, I ruled that the issue in respect of the true innuendoes pleaded in par 7 of the amended statement of claim would be postponed to another occasion.