Alex v Goodsir [2014] NSWDC 72

District Court New South Wales

Medium Neutral Citation: Alex v Goodsir [2014] NSWDC 72 Hearing dates: 20 June 2014 Decision date: 20 June 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Defendant's application to strike out imputation (a) is dismissed. (2) Defendant pay plaintiff's costs of this application. (3) Matter stood over to Monday 23 June 2014 at 9:00am before Gibson DCJ. Catchwords: TORT - defamation - imputations - corrupt Legislation Cited: - Cases Cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 John Fairfax & Sons Pty Ltd v Foord (1988) 12 NSWLR 706 Category: Interlocutory applications Parties: Plaintiff: George Alex Defendant: Darren Goodsir Representation: Plaintiff: Mr R Rasmussen Defendant: Mrs L Barnett Plaintiff: Astoria Lawyers Pty Ltd Defendant: Banki Haddock Fiora File Number(s): 2014/73486 Publication restriction: None

Judgment 1These are reasons for my ruling today that imputation (a) is not bad in form by reason of the use of the word "corrupt" 2These are proceedings for defamation, commenced against Mr Goodsir in his capacity as the editor of the Sydney Morning Herald, for publication of an article on 10 March 2014 entitled "Union corruption: Byrnes says he will tell all at royal commission/'Big Jim' and the bagman". A boxed small headline indicates that this article is one of a series, published under the general title "Inside the building racket". 3The imputation the subject of this ruling is as follows: (a)The plaintiff is corrupt (paragraphs 1, 5, 7, 9, 10, 16, 17, 18, 21, 22, 23, 24, 36). 4These headlines are a clear indication of the nature and content of the matter complained of. This is not a publication that is "anxious to wound but afraid to strike" (see Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 169 per Hunt AJA). The opening paragraphs robustly reveal that "colourful business identity" Jim Byrnes has vowed to tell the royal commission into corruption everything he knows about bribery, links to organise crime and the "allegedly" underhand dealings of concerning both the "crime figure and allegedly corrupt building company owner George Alex" (paragraph 5) and the CFMEU "boss", Brian Parker. 5A list of these proposed revelations then follows. Mr Byrnes states that he will name "at least four" CFMEU organisers whom the plaintiff has bribed (paragraph 9) and the builders to whom he has given expensive gifts (paragraph 26). One of these is a "bagman" Mr Byrnes saw taking an envelope of cash at the plaintiff's home; this "bagman" also threatened to kill a whistleblower who had questioned why the plaintiff was being promoted by the union despite having "ripped off" workers (paragraphs 4 and 22). Mr Byrnes goes on to state that the plaintiff a man convicted of murder after his release from gaol "in an additional attempt to win union support for his building firms" (paragraph 17). Mr Alex mixes with a wide range of disreputable persons such as "extensive organised crime ties" (paragraphs 4,10, 18), bikies and gangsters (paragraph 24, 26) and additionally had "extensive connections in the Labour movement" (paragraph 16). To this can be added his shonky business dealings and ripping off workers' entitlements totalling hundreds of thousands of dollars (paragraphs 22 - 25), questionable dealings in horse racing (paragraphs 8, 27 - 29), being a "crime figure" himself (paragraph 5) and, most relevantly, using "corrupt business practices (paragraph 24). 6These are not put forward as merely allegations made by Mr Byrne, himself a convicted criminal who has been banned twice from operating companies, but as matters for which there is reliable corroboration in the form of revelations by whistleblowers (paragraphs 20 - 22 and 35), inquiries by the Tax Office and "law enforcement agencies" (paragraph 10), confirmation of facts from former Senator Graham Richardson (paragraphs 11 - 13) and horse ownership records (paragraph 28), as well as the plaintiff's own conduct, in that he "recently" moved to repay the workers he had "ripped off" sums totalling "hundreds of thousands of dollars in outstanding entitlements" (paragraph 25). 7By the time the reader gets to paragraph 30 - 31, where Mr Parker ripostes that his dealings with the plaintiff were "appropriate" and that Mr Byrne's statements should be "carefully weighed", a picture has been painted of the plaintiff as having corrupt business practices over a broad spectrum. 8The first issue is the degree of specificity required for imputation (a). In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, Gleeson J explained (at 137) that the plaintiff was entitled to plead an imputation as broadly as the allegations that were made. If the matter complained of said that Mr X was "disgusting", then the imputation was "X is disgusting". 9The second issue is whether the plaintiff should be permitted to plead an imputation stating merely that he is "corrupt", as opposed to defining the corruption in question (such as bribery). Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (at 138) outlined the limited circumstances in which the broad imputation of "corrupt" conduct would be permitted, as follows: "Allegations of corruption have, in recent years, provided a fruitful source of controversy in this area of defamation law and practice. As Hunt J pointed out in Whelan and elsewhere, the word "corrupt" can have significantly different shades of meaning. This does not make it unusual, but, because it is a word the use of which is apt to give rise to allegations of defamation, it seems to have come in for a high degree of forensic exegesis. Depending upon the context, for example, it can mean that a person takes bribes, or that he abuses power entrusted to him, or that he improperly obtains private benefits from a public position. The range of possible meanings of the word when used in connection with public officials in this State has been substantially expanded by the enactment of the Independent Commission Against Corruption Act 1988 which defines "corrupt conduct" in a manner that goes well beyond the ordinary meaning of that expression and is notable for its generality and vagueness." 10In those proceedings, the broadcast opened with general references to corruption and the Independent Commission Against Corruption, but went on to recount events "without making any clear or logical connection between the opening remarks and the events and matters in question" (at 140). In those circumstances, Gleeson CJ considered that to permit the plaintiff to frame imputations of corruption without specifying which of the different possible kinds of corruption is being referred to would be contrary to the relevant rules of pleading. 11By contrast, in John Fairfax & Sons Pty Ltd v Foord (1988) 12 NSWLR 706, where the heading was "GOVT'S WAR ON CORRUPT JUDGES", an imputation that the plaintiff was a corrupt judge was not bad in form, and should be allowed to go to the jury. Clarke JA noted at 726: "If the complaint is that the imputation as pleaded lacks claritybecause the word 'corrupt' is ambiguous then that deficiency flowsnaturally from the material published. It was the defendant who used the word 'corrupt' and, provided that the respondent in an unqualified manner can satisfy the test on identification and there is no issue about that in these proceedings, then there can be no argument but that the poster is describing the respondent as a corrupt judge. I regard the appellant's submissions on this imputation as hopeless and it must, in my opinion, be submitted to the jury." 12Mrs Barnett submits, and I agree, that the question is where, in between these two cases, this particular matter complained of falls. She submits that the plaintiff should be required to define the kind of corruption of which he stands accused, by referring to bribery, this being the principal allegation made. 13I do not accept that this level of refinement is necessary in these proceedings. As the analysis of the allegations in the matter complained of set out above demonstrates, this is not a case where the imputation is so lacking in clarity as to be likely to cause confusion at the trial, warranting it to be defined or struck out. Although the plaintiff is initially referred to as "allegedly corrupt", the long list of claims leading to the statement in paragraph 24 concerning the plaintiff's "corrupt business practices" is then followed by further revelations about those business practices, including the fact that the plaintiff has "recently moved to repay" hundreds of thousands of dollars to the workers whose rights he disregarded in the course of those corrupt business practices. 14Unlike Drummoyne Municipal Council v Australian Broadcasting Corporation, supra, there is a direct connection between the allegations of corruption and the conduct involved, at both the beginning and the end, and the sheer weight of the allegations quickly overcomes any anodyne effect from the initial, sole, use of the word "alleged" in relation to the plaintiff's corruption. 15In the circumstancing, I am satisfied both that this is a general smear of the "X is disgusting" kind (Drummoyne Municipal Council v Australian Broadcasting Corporation, supra, at 137 per Gleeson CJ), and that there is no need for further refinement as to the kind of corruption, for the reasons explained by Clarke JA in Ford, supra. 16Accordingly I decline to strike out imputation (a).