Supreme Court New South Wales Medium Neutral Citation: Alex v Gridneff [2013] NSWSC 2025 Hearing dates: 19 December 2013 Decision date: 19 December 2013 Before: McCallum J Decision: Plaintiff's imputation struck out with leave to replead; plaintiff to pay second defendant's costs of the application Catchwords: DEFAMATION - form of imputation - where act or condition allegedly attributed to the plaintiff by the matter complained of is expressed as "a possibility" Cases Cited: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWL 135 Jackson v John Fairfax & Sons [1981] 1 NSWLR 36 Purcell v Cruising Yacht Club of Australia [2003] NSWSC 245 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 Category: Interlocutory applications Parties: George Alex (plaintiff) Ilya Gridneff (first defendant) Fairfax Media Publications Pty Ltd (second defendant) Representation: Counsel: T Molomby (plaintiff) L Barnett (second defendant) Solicitors: O'Brien Lawyers (plaintiff) Banki Haddock Fiora (second defendant) File Number(s): 2013/258747 Publication restriction: None Judgment - ex tempore 1HER HONOUR: This is an action for defamation arising out of the publication of an article published in The Sydney Morning Herald under the headline "The final moments of a deadly dispute". 2The plaintiff has specified a single imputation alleged to arise in the natural and ordinary meaning of the matter complained of, as follows: There is a possibility that [the plaintiff] is the person who arranged for the visit to Mr Steve Mitrovic's premises of a group of men carrying a firearm during which visit Mr Mitrovic was shot. 3The defendant objects to the form of the pleading on the grounds that the imputation is bad in form as being embarrassing and that it is accordingly liable to be struck out. 4The matter complained of describes an incident during which seven men allegedly attended the premises of Mr Zeljko "Steve" Mitrovic, a senior member of the Hells Angels. The article reports that within 20 minutes of their arrival, Mr Mitrovic was shot dead. It reports the development of a fierce discussion at the front of Mr Mitrovic's office, following which three of the seven followed Mr Mitrovic into his office. The article states, "Minutes later, one allegedly pulled a gun and shot Mr Mitrovic dead". 5The article then reports the existence of a dispute between the deceased and a Mr Bacic, as to whom it is said that police want him for questioning over his dealings with the deceased. 6The article proceeds in effect to pose or investigate other lines for investigation, including the following: Mr Mitrovic is understood to have had several feuds with former business associates, including a former business partner George Alex - the director of Active Workforce, a scaffolding and labour hire company. Fairfax understands the dispute centres on a $400,000 Dural property the pair were going to buy, but the deal soured and became a legal dispute. 7After an irrelevant reference to a comment made by another person, Mr Byrnes, the article concludes: Mr Byrnes said he also knew Mr Alex, but no longer has any dealings with him. Mr Alex did not return calls. 8Mr Alex is of course the plaintiff. The article thus places some focus on him, together with Mr Bacic, as associates of the deceased who may have had the kind of dealings with him which could have given rise to the dispute which resulted in his being shot. 9Ms Barnett submitted that the imputation set out above is bad in form because it fails to specify with sufficient clarity any act or condition attributed to the plaintiff. The importance of doing so is well recognised. It is the subject of a helpful exposition in the judgment of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 as follows: The Supreme Court Rules 1970, Pt 67, r 11, provide that in an action for defamation the statement of claim shall specify each imputation on which the plaintiff relies. Furthermore, ordinary principles of pleading, fairness to a defendant, and the need for clarity of issues at a trial, all require adequate specification by a plaintiff of the imputation or imputations sued upon. In Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 91, Griffith CJ observed that "impute" is an ordinary English word, and is properly used with reference to any act or condition asserted of or attributed to a person. His Honour went on to say that in the section of the Criminal Code Act 1899 (Qld) which he was considering the word "imputation" meant the matter (act or condition) imputed, and that if the act or condition imputed were such that the plaintiff's reputation was likely to be injured by it, or the plaintiff was likely to be injured in his profession or trade, the law called it defamatory. In Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1, a case concerning the Defamation Act 1958, Gibbs J said (at 10): "... To make an imputation concerning a person is to attribute some act or condition to him, or in other words, simply to make a statement concerning him." The requirement that a plaintiff must "specify" the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found inconsiderations of practical justice rather than philology. 10Neither party was able to point to any authority dealing with an imputation in the form of the present imputation, that is, one which alleges that what is imputed to the plaintiff by the matter complained of is a possibility of an act where the act is plainly of the kind that would cause ordinary decent people to think the less of the plaintiff. Ms Barnett submitted, however, that some assistance may be derived from the authorities dealing with what may be described as "suspicion imputations". There is some analogy in the issues raised by such an imputation and the jurisprudence in that field is, I think, helpful. 11Ms Barnett referred first to the decision of Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669, which is considered in the decision of Kirby J in Purcell v Cruising Yacht Club of Australia [2003] NSWSC 245. 12The relevant passages from Sergi are set out at paragraphs 23 to 27 of Kirby J's judgment. Those passages reinforce the proposition that an imputation must specify what it is that the matter complained of imputes to the plaintiff which is capable of disparaging him in the eyes of ordinary people. In that context the Court in Sergi noted that a suspicion imputation which fails to identify the person holding the suspicion or levelling an accusation against the plaintiff will not meet that requirement. 13Of particular assistance in analysing that proposition is the quote set out at paragraph 26 of Purcell from the judgment of Hutley J in Sergi at 671B, where his Honour said: An accusation from certain quarters may be a compliment, or at least carry no reflection upon the reputation of the accused. The cases in which the defamatory import of accusations have arisen are all where the accusation was by legitimate authorities. Thus, in Lewis v Daily Telegraph Ltd [1964] AC 234, the defamatory meaning was that the plaintiffs were suspected by the police. 14Ms Barnett also relied on the decision of Hunt J in Jackson v John Fairfax & Sons [1981] 1 NSWLR 36. That was an interesting case, an analysis of which does also provide some assistance by way of analogy in the resolution of the present application. 15Mr Jackson had been charged with conspiracy but that charge had been dropped. The matter complained of had not caught up with the fact that the charge had been dropped and so expressed the proposition that there was an allegation against Mr Jackson of conspiracy in the present tense. The publisher was thus left in the difficult position of having to meet a case of having published something which conveyed the existence of the allegation in the present tense. It sought to do so with a contextual imputation dealing with the bringing of the charge in the past tense. 16In dealing with an objection to that imputation, his Honour noted that during argument it had been conceded by the defendants, properly in his Honour's view, that the assertion that a person was suspected of conspiracy to cheat and defraud necessarily implies that he had so conducted himself as to have warranted that suspicion. His Honour said (at page 41): It was argued by the defendants that to describe a person as a suspect is to attribute to him a condition which may be disparaging, and that nothing more should be required. But to describe him as a suspect is only a compressed way of saying that he is a person who is suspected of something by another person. And, as the defendants have conceded, to say that a person is suspected of something necessarily implies that he has so conducted himself as to have warranted that suspicion. 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. I have already held, in accordance with Lang's case (1970) 2 NSWR 408, that to prove the reaction of others to the plaintiff's conduct does not prove the conduct itself. This argument of the defendants is rejected. 17What emerges from a consideration of those authorities is that the reason a suspicion imputation is defamatory - if it is defamatory - is that the suspicion is attributed to some entity as to which the holding of the suspicion is enough in itself for the reader to conclude that the person is probably guilty of the crime charged, or at least has conducted himself in such a way as to found the suspicion. 18Ms Barnett submitted that the vice of the plaintiff's imputation in the present case is that by merely identifying a possibility of guilt or of some act, the imputation fails in that respect, that is, it fails to attribute any act or condition to the plaintiff. 19Mr Molomby submitted that the condition attributed to the plaintiff in the imputation is risk. He gave the example of an article which might publish the photographs of seven men and report that one of the men photographed had murdered Mr Mitrovic. A second example which emerged during argument was that of an article which reported the fact that 37 people on an aeroplane might have a communicable disease or an infectious disease, on the basis that one person on the aeroplane had the disease and the other 36 had been exposed to it during the flight. The second example is, upon reflection, apt to distract attention from the real issue. 20There is a separate class of case following from the Youssoupoff line of authority, if it may be so-called, that it may be defamatory of a person to attribute a certain condition to him or her, even where no moral blame can be attributed to the person themselves: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581. Youssoupoff itself was a case where the condition attributed to the plaintiff by the matter complained of was that she had either been ravaged or raped by Rasputin. The Court of Appeal in that case held that, even if the matter was properly understood as asserting that she had been raped, rather than allowing herself to be seduced, that was a condition which, if attributed to a woman in the time the decision was made, was capable of causing others to shun and avoid her. 21That is not this case. The example of a plaintiff being identified as one of seven people, one of whom certainly murdered a person, is helpful in illustrating the complexity of this issue, but it is not quite the same point as is here raised. Coming back to the imputation in this case, the real difficulty is to understand what it says about the plaintiff. It seems to me that the reason a "suspicion" imputation is defamatory is that it goes hand in hand with such an imputation, as explained by Hunt J in Jackson, that the existence of the suspicion in another person necessarily implies that the plaintiff has so conducted himself as to warrant it. 22Mr Molomby submitted that that is not correct and that what Hunt J said in Jackson, if understood in that way, is wrong. If it is wrong, the corollary in my view is that a suspicion imputation, expressed by reference to the fact that a person other than the plaintiff held a suspicion, cannot stand. The reason such an imputation is allowed to stand is because what it is really saying is something about the conduct of the plaintiff. If it is not, it fails to meet the requirement that a defamatory imputation must distil the sense in which the matter complained of allegedly imputes some defamatory act or condition to the plaintiff. 23The present imputation may be tested against the measure suggested by Hunt J in Jackson of asking what must be proved in order to justify the truth of the imputation so far as it concerns the plaintiff. In its present form the imputation relied upon by Mr Alex could, in theory, be proved by establishing that Mr Mitrovic was shot by someone in Australia, that there were 20 million people in Australia on the day on which he was shot and that there was accordingly a one in 20 million possibility that the plaintiff was the person who arranged for Mr Mitrovic to be shot. That, at one level, may be seen to be an absurd example, but it demonstrates the difficulty. 24It would, in my view, be impossible for those advising the defendant to give any sensible advice as to what would be required in order to justify the present imputation. 25For those reasons I have concluded that the imputation is bad in form and must be struck out, with leave to replead. 26(Mr Molomby did not seek to be heard against an order for costs.) 27I order the plaintiff to pay the second defendant's costs of the application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2014