Alex v Gridneff (No 2) [2014] NSWSC 181

Supreme Court New South Wales

Medium Neutral Citation: Alex v Gridneff (No 2) [2014] NSWSC 181 Hearing dates: 4 March 2014 Decision date: 04 March 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1. Application to strike out imputation dismissed. 2. The second defendant to pay the plaintiff's costs of the application. Catchwords: DEFAMATION - whether imputation capable of arising - reasonable grounds for suspecting - no question of principle. Cases Cited: - Alex v Gridneff [2013] NSWSC 2025 - Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 Category: Interlocutory applications Parties: George Alex (Plaintiff) Ilya Gridneff (First Defendant) Fairfax Media Publications Pty Ltd (Second Defendant) Representation: Counsel: T. Molomby SC (Plaintiff) Ms L Barnett (Second Defendant) Solicitors: O'Brien Lawyers (Plaintiff) Banki Haddock Fiora (Second Defendant) File Number(s): 2013/258747

ex tempore Judgment 1The second defendant to these proceedings, Fairfax Publications Pty Limited ("Fairfax") seeks to strike out the imputation which is pleaded in paragraph 6 of the plaintiff's Amended Statement of Claim pursuant to Uniform Civil Procedure Rules 2005 (NSW), 14.28. 2Two matters are raised in support of that application. First, it is said that the imputation pleaded is not capable of arising from the matter complained of. Second, it is submitted that in a material respect one aspect of the imputation is so ambiguous that the imputation in its current form cannot stand. To address this it is necessary to briefly describe the article in question. 3The article was published in The Sydney Morning Herald on or about 17 January 2013. It was entitled "Final moments of a deadly dispute". It described the events surrounding the shooting of the late Zeljko "Steve" Mitrovic. 4The second paragraph of the article states that the shooting of Mr Mitrovic was "allegedly the climax of days of heated arguments between Mr Mitrovic and a business associate, Frank Bacic". The article then describes how seven men confronted Mr Mitrovic at the front of his business premises. The article states that there was a fierce discussion that got out of hand and that Mr Mitrovic left that part of his office and went to another part believing the row was over. The article says he was followed by three men one of whom allegedly pulled a gun and shot him dead and shot a co-worker in the arm. 5In relation to the position of Mr Bacic, the article recounts that Fairfax "understands the dispute was over an outstanding debt" and recounts the fact that Mr Bacic was wanted for questioning over his dealings with Mr Mitrovic. This part of the article then states "police are not alleging Mr Bacic was the shooter or ordered the attack". The article then cites various rumours concerning the arrangements between Mr Bacic and Mr Mitrovic. The last part of the article then broadens the horizon of suspects. It states: "Mr Mitrovic is understood to have 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". 6There was then a quote from a source concerning Mr Mitrovic's love for his family. The article then cites that source as saying "he also knew Mr Alex but no longer had any dealings with him. Mr Alex did not return calls". 7A previous imputation to the effect that the article conveyed that there was a possibility that Mr Alex was the person who arranged for the visit to Mr Mitrovic's premises of a group of men carrying a firearm, during which visit Mr Mitrovic was shot was struck out by McCallum J on 19 December 2013 (Alex v Gridneff [2013] NSWSC 2025). 8As a consequence, the plaintiff brought in an amended statement of claim that replaced the one imputation pleaded with the following imputation "There are reasonable grounds to suspect that he 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 dead". 9As I have stated, the first basis upon which it is sought to have that imputation struck out is that it is not capable of arising from the matter complained of. The parties were content to rely upon the statement of principles concerning the characteristics and approach of the ordinary reasonable reader set out by Tobias JA in Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 especially at [19] and following. In particular, counsel for Fairfax, Ms Barnett, emphasised that part of that discussion which referred to the ordinary reasonable reader not being "avid for scandal" when viewing such material (at [19(c)]). 10Nevertheless, I am of the view that the imputation as pleaded is capable of arising from the matter complained of. In that regard I note the following, First, a reading of the article makes it clear that there is a strong basis for suspecting that the gunman attended Mr Mitrovic's premises over a dispute concerning a business debt. Second, the article names only two persons in respect of whom Mr Mitrovic had such a dispute, namely Mr Bacic and Mr Alex. Third, while Mr Bacic is not excluded as being a participant his involvement is, to an extent, minimised by the statement that the police were not alleging that he was the shooter or that he ordered the attack. 11Fourth, there is no such disclaimer in respect of, or diminution of the role of, Mr Alex. Fifth, the mere juxtaposition in the article of Mr Alex as a person having a significant business dispute with Mr Mitrovic and the terrible circumstances surrounding Mr Mitrovic's death, in my view raises the type of reasonable suspicion to which the imputation is directed. 12Sixth, it must be understood that merely because there are reasonable grounds to suspect one person does not mean that the involvement of another person is thereby excluded. In other words, it is quite possible in a particular case for the police to have reasonable grounds to suspect two different persons were criminally responsible. 13In those circumstances, I do not accept Fairfax's first point. 14The second point raised by Ms Barnett on behalf of Fairfax concerns that part of the imputation which refers to the consequences of the visit from the group of men, that is, the words "during which visit Mr Mitrovic was shot dead". The point raised by Ms Barnett was that it is ambiguous as to whether that consequence was something that was intended by the plaintiff, foreseen by the plaintiff, contemplated by the plaintiff or unintended by the plaintiff. 15In oral argument Senior Counsel for Mr Alex, Mr Molomby, clarified that the imputation was meant to travel no higher than saying that it was an unintended (by Mr Alex) consequence of the visit of the group of men that Mr Mitrovic was shot dead. In my view that is the way one would ordinarily interpret the words in the imputation, although the possibility referred to by Ms Barnett would, absent clarification, not be excluded. Now that it has been clarified, I do not consider that there is any further need to revisit or refine the imputation. 16 In light of that clarification, I decline to strike out the imputation. 17The application is dismissed. [Counsel addressed as to costs.] 18The only matter raised by Ms Barnett in opposition to a cost order is that her client achieved some clarification of part of the imputation. In response, Mr Molomby SC noted that that part of the imputation was present in its predecessor and no serious issue was raised at the time that it was struck out. 19I think in all the circumstances the plaintiff has been successful. I order that the second defendant pay the plaintiff's costs of the application.