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). Orders (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. Schedule - Matter complained of 1Union corruption/ Byrnes says he will tell all at royal commission 2'Big Jim' and the bagman 3Exclusive Nick McKenzie, Richard Baker, James Massola, Nick Ralston 4Colourful business identity Jim Byrnes has vowed to give evidence at the royal commission into union corruption about construction union bribery, links to organised criminals and the allegedly underhand dealings of CFMEU boss Brian Parker. 5Fairfax Media can also reveal that crime figure and allegedly corrupt building company owner George Alex hired Labor power-broker Graham Richardson to help lobby developers and secure contracts in the mid-2000s. 6In an exclusive interview, ''Big Jim'' Byrnes said he is ''looking forward'' to telling commission investigators about his dealings with Mr Alex and the construction union and says he will: 7► Identify the union official and ''bagman'' who Mr Byrnes says he saw take an envelope of cash at the home of Mr Alex. 8► Allege that he helped to buy a racehorse for Mr Parker and builder Denis Delic and then registered the horse in the names of the trio's wives to disguise Mr Parker's involvement in the racing venture. 9► Identify at least four senior serving or former CFMEU organisers who have allegedly been bribed by builders, including Mr Alex. 10Mr Alex is a former bankrupt who has been repeatedly chased by the Tax Office over unpaid tax and examined by law enforcement agencies over his dealings with organised crime figures. 11Mr Richardson told Fairfax Media that he consulted for Mr Alex and his business partners for ''a year or two''. 12''My job was to try and get them work in the construction industry, but the reality was that there was too many established firms and it was a very difficult task,'' he said. ''I got them [the company] a couple of dribs and drabs, but didn't get them any permanent contracts for their labour hire firm,'' Mr Richardson said. 13Fairfax Media is not suggesting... 14[Caption] INSIDE THE BUILDING RACKET 15'Big Jim' Byrnes vows to tell all at royal commission 16...Mr Richardson ever acted improperly or knew of Mr Alex's extensive criminal associations in Sydney and Melbourne. But Mr Alex's link to the former NSW Labor senator highlights Mr Alex's extensive connections in the Labor movement. 17Fairfax Media can also reveal that in an additional attempt to win union support for his building firms, Mr Alex employed CFMEU organiser Sammy Manna's son, Adriano, after he was released from a 12-year stint in prison for attempted murder. 18Mr Alex has extensive organised crime ties in Melbourne and Sydney, where his labour hire businesses operate with union backing. Mr Byrnes was involved in some of Mr Alex's business affairs before the pair fell out over a business deal. 19Mr Byrnes was once Alan Bond's financial adviser and has a chequered history dating back to the 1980s, when he was jailed for the deemed supply of heroin, acquitted of fraud charges and banned twice from operating companies. 20In 2007, after Mr Byrnes pleaded guilty to smashing the office window of a solicitor, a NSW judge agreed that Mr Byrnes should avoid a jail term and that he had made a success of himself after a bad start in life. 21Mr Byrnes's allegations about the inappropriate ties between union officials and Mr Alex and Mr Delic corroborate claims recently made by two CFMEU officials turned whistleblowers, Brian Fitzpatrick and Andrew Quirk. 22The union organiser who Mr Byrnes says he saw taking a ''white envelope'' filled with cash from Mr Alex is the same union official who Mr Fitzpatrick has alleged was inappropriately lobbying for Mr Alex's firms. Mr Fitzpatrick has alleged that this official threatened to kill him after Mr Fitzpatrick questioned why Mr Alex was being promoted by the union despite ripping off workers. 23Mr Fitzpatrick, Mr Quirk and Mr Byrnes have all alleged that Mr Parker, the NSW CFMEU secretary, was socialising and supporting Mr Alex, despite Mr Alex's shonky building industry dealings. 24Mr Byrnes said: ''I warned Parker to keep away from George Alex as Alex was tied up with bikies and gangsters. But Parker didn't [stay away]. What is most disturbing is that he favoured George Alex and his corrupt business practices over the rights of workers.'' 25Mr Byrnes said that Mr Parker allowed Mr Alex to avoid the usual CFMEU auditing to ensure workers were paid their full entitlements. Mr Alex recently moved to repay workers hundreds of thousands of dollars in outstanding entitlements. 26Mr Byrnes said he will tell the royal commission that Mr Parker was given expensive gifts by Mr Delic and that the CFMEU favoured firms owned by Mr Delic, who was a business associate of both Mr Alex and murdered Hells Angels boss Zeljko Mitrovic. 27Mr Byrnes has also alleged that in 2010, he bought a $14,000 racehorse for Mr Parker and Mr Delic, who recently died of a heart attack. 28Horse ownership records obtained by Fairfax Media show that until recently, the racehorse Maroota's Way was registered in the names of ''Mrs A Delic, Mrs K Parker & Mrs C G Byrnes''. 29Mr Parker declined to answer specific questions about the horses, although NSW branch president Rita Malia said in a statement: ''Mr Parker disclosed his friendship with Denis Delic and the fact that he was once a co-owner in two horses'' with him. 30In response to Mr Byrnes's allegations, Mr Parker said in a statement: ''Jim Byrnes is a convicted criminal who has previously been struck off as a director of a company. Any statements by him should be carefully weighed.'' 31Mr Parker also insisted that his dealings with Mr Delic and Mr Alex were appropriate and he had never used his influence to advantage the pair's firms. 32 [Picture] 33 [Picture] 34 [Picture] 35Building on trust: CFMEU secretary Brian Parker, left and clockwise from above, building company owner George Alex, murdered Hells Angels boss Zeljko Mitrovic, whistleblowers Brian Fitzpatrick and Andrew Qurick. 36[Picture] 37[Picture] 38[Picture] 39January 28 40January 29 41February 10 42 [Picture] 43 [Picture] ********** 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: 26 June 2014