Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 Hearing dates: 12 August 2014 Decision date: 12 August 2014 Before: McColl JA (at [1]), Leeming JA (at [29]), Tobias AJA (at [30]) Decision: See [26], [27] and [31] Catchwords: DEFAMATION - Defamation Act 2005 (NSW) - pleadings - imputations - Uniform Civil Procedure Rules 2005, r 14.30 - where ambiguity - not to be left to jury subject to clarification DEFAMATION - pleadings - whether matter published capable of conveying defamatory imputation Legislation Cited: Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005, (NSW) Cases Cited: Alex v Gridneff (No 2) [2014] NSWSC 181 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; (2014) 98 ACSR 301 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 In re the Will of F B Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 John Fairfax Publications v Rene Rivkin [1999] NSWCA 164 Lewis v Daily Telegraph Ltd [1964] AC 234 Singleton v Ffrench (1986) 5 NSWLR 425 Toben v Milne [2014] NSWCA 200 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 Category: Principal judgment Parties: Fairfax Media Publications Pty Ltd - Applicant George Alex - Respondent Representation: Counsel: T Blackburn SC with L Barnett (Applicant) Solicitors: Banki Haddock Fiora (Applicant) File Number(s): 2014/96717 Publication restriction: Nil Decision under appeal Citation: Alex v Gridneff (No 2) [2014] NSWSC 181 Date of Decision: 04 March 2014 Before: Beech-Jones J File Number(s): 2013/258747 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. McCOLL JA: The applicant, Fairfax Media Publications Pty Ltd, seeks leave to appeal from a decision of Beech-Jones J dismissing with costs the applicant's application to strike out pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 14.28 an imputation pleaded by the respondent, George Alex: Alex v Gridneff (No 2) [2014] NSWSC 181. The application has proceeded as a concurrent hearing so that if leave to appeal is granted, the argument on the application will be taken to be the argument on the appeal. 2. For the reasons that follow, I would grant leave to appeal and allow the appeal in part. 3. The respondent commenced defamation proceedings in respect of an article published in "The Sydney Morning Herald" on or about 17 January 2013 entitled "Final moments of a deadly dispute" (the "matter complained of"). The matter complained of described the events surrounding the shooting of the late Zeljko "Steve" Mitrovic", who it described as "a senior member of the Hells Angels". Subject to the matters to which I will shortly refer, the substance of the matter complained of was sufficiently described by the primary judge in his ex tempore judgment as follows: "4 The 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. 5 In 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.' 6 There 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'." 1. I would add two references to the primary judge's account of the matter complained of as germane to the capacity issue. 2. First, the matter complained of referred to the applicant's understanding of the dispute as being "over an outstanding debt, which one source put at $200,000". It also identified Fairfax's understanding of the dispute between the deceased and the respondent as centring "on a $400,000 property the pair were going to buy but the deal soured and became a legal dispute". Secondly, part of the matter complained of stated: "The acting Assistant Police Commissioner, Peter Cotter, has ruled out any links to bikie gangs. '[We are looking at] the personal side of business or the personal side of his life,' he said." 1. McCallum J struck out, with leave to replead, an earlier imputation pleaded by the respondent, that "there is a possibility 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": Alex v Gridneff [2013] NSWSC 2025. The respondent then pleaded the challenged 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." 1. The applicant sought to have that imputation struck out on two bases. First, that it was not capable of arising from the matter complained of. Secondly, that the words "during which visit Mr Mitrovic was shot dead" were "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": primary judgement (at [14]). 2. The primary judge succinctly explained why he did not accept the applicant's first argument: "10 Nevertheless, 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. 11 Fourth, 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. 12 Sixth, 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." 1. His Honour rejected the second argument (at [15]) in light of the clarification proffered by Senior Counsel for Mr Alex, Mr Molomby, 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 his Honour's view "that is the way one would ordinarily interpret the words in the imputation, although the possibility referred to by [the applicant] would, absent clarification, not be excluded". Submissions 1. On the issue of leave, the applicant urged the Court to revert to its pre-s 7A (1974 Act) practice of being "liberal in granting leave to appeal in cases of this kind because all questions of fact including damages had to be decided at the trial by a jury": John Fairfax Publications v Rene Rivkin [1999] NSWCA 164 (at [13]) per Handley JA (Sheller JA and Brownie AJA agreeing). 2. The applicant's primary substantive submission was that the primary judge erred in a manner warranting appellate interference in declining to strike out the imputation on the basis that it was ambiguous. It argued that the primary judge ought to have required the respondent to plead an imputation that accurately reflected the meaning for which he contended. 3. The applicant submitted that allowing the matter to proceed with the imputation subject to clarification was fundamentally erroneous for at least two reasons. 4. First, the process of pleading the defences under the Defamation Act 2005 (NSW) (the "2005 Act") depended to varying extents upon meeting the sting of the matter complained of for which the plaintiff contended. Accordingly the applicant would, or could, be embarrassed in having to plead its defences if the meaning of the respondent's imputation was not apparent from what was pleaded in his statement of claim. 5. Secondly, the applicant submitted that the approach his Honour's conclusion sanctioned carried the likelihood that the jury that will be empanelled to hear the matter would be confused as to the meaning for which the respondent contended, thus having the potential to lead it into error. This was because the jury would have to consider the document setting out the questions customarily placed before defamation juries (the first of which would be whether the respondent had established that the matter complained of carried the imputation) in the light of counsel's oral clarification of the meaning of the imputation and the trial judge's directions as to how to determine the first question in the light of that clarification. It argued that this was contrary to principle. 6. The applicant's second argument was that, in any event, the imputation was not capable of being conveyed by the matter complained of as it did not impute that there were "reasonable grounds to suspect" the respondent. Accordingly the imputation was not reasonably capable of being conveyed. It also contended that the respondent's imputation was "strained and forced" in that to the extent the matter complained of suggested any feud was connected to Mr Mitrovic's shooting, it was that between the deceased and Mr Bacic. Consideration 1. The respondent was represented below, but not on the hearing of the application for leave to appeal. He was called outside court three times but did not appear. The applicant was given leave to file in court an affidavit of Mr Timothy Senior affirmed on 11 August 2014 which sets out the history of the respondent's appearance in the matter, first by solicitors who in due course filed a notice of ceasing to act after the hearing below. It also recounted the circumstances in which the respondent has been given notice of the application for leave to appeal by correspondence forwarded to his last known address. I am satisfied that the respondent was served with the application for leave to appeal. 2. The respondent also did not file any submissions opposing the application. That does not mean the application must succeed. The Court is reluctant to grant leave to appeal in matters of practice and procedure: In re the Will of F B Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318. It will accede generally to such an application where it considers there is "a clear case of material error in the decision at first instance": Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; (2014) 98 ACSR 301(at [21]) per Macfarlan JA (Ward JA and Tobias AJA agreeing). 3. The Court has recently expressed the view that where the effect of the strike-out orders is to restrict substantially the scope of the plaintiff's case at trial, it may be more appropriate for an appellate court to intervene than in circumstances where the primary judge has permitted imputations to go to a jury: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 (at [14]) per McColl JA (Bathurst CJ and Gleeson JA agreeing). The English authorities referred to in that decision did not suggest a similar approach in relation to defendants. While I do not doubt the force of Handley JA's observation in John Fairfax Publications v Rene Rivkin, absent a contradictor it is, in my view, inappropriate to determine the approach the Court should adopt to defendants' applications under the 2005 Act. In any event, I am of the view that leave to appeal should be granted because the applicant has demonstrated the primary judge erred on a matter of principle. Ambiguous imputations 1. Pursuant to s 8 of the 2005 Act, a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter: cf s 9, Defamation Act 1974 (NSW) (the "1974 Act"). Nevertheless as Beazley P and Ward JA said in Toben v Milne [2014] NSWCA 200 (at [8]), "the pleading of a defamation claim proceeds by way of imputations and challenges to individual imputations have remained part of the legal landscape". As their Honours also said (at [10]), by reference to the requirement in UCPR 14.30(3) that imputations must differ in substance, "the aim is to ensure that imputations are stated with sufficient precision to avoid the likelihood of confusion as to what the imputation means". 2. The reason pleading imputations have remained "part of the legal landscape" notwithstanding the changes the 2005 Act effected to the cause of action in defamation in New South Wales which had prevailed under the 1974 Act, was discussed in Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 (at [43] - [45]) and need not be repeated. Suffice it to say, the practice of requiring a plaintiff to plead imputations even where the natural and ordinary meaning of the defamatory words was relied on is conducive to proper case management: Fairfax Media Publications Pty Ltd v Kermode (at [45]). 3. UCPR 14.30(2) requires the statement of claim seeking relief in relation to the publication of defamatory matter to specify each imputation on which the plaintiff relies. Thus, "an imputation must be stated with sufficient precision as to avoid the likelihood of confusion in relation to the meaning for which the plaintiff contends": Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 (at 162) per Hunt CJ at CL, Mason P and Handley JA agreeing; see also Toben v Milne (at [37] - [38)) per Meagher JA. 4. In Singleton v Ffrench (1986) 5 NSWLR 425, McHugh JA (Samuels JA agreeing) held (at 433) that it is incumbent on the defendant to defamation proceedings to apply to have an ambiguous imputation struck out as embarrassing on the basis that it has a tendency to cause embarrassment in the proceedings. His Honour also said (Singleton v Ffrench, at 435) that it would be erroneous for a trial judge to permit "the jury to determine the meaning of [an] imputation". As Mahoney JA said (Singleton v Ffrench, at 428), it is for the judge hearing a strike-out application to determine what meaning the imputation bears: see also Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 (at [68]) per McColl JA (Giles JA and Sackville AJA generally agreeing). 5. The issue which has to be decided in the particular case as to whether there is ambiguity in an imputation is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends: Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 (at 155) per Hunt J. Gleeson CJ agreed with Hunt J's formulation of the question in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 (at 138); see also Priestley JA (at 155) where his Honour expressed the issue as depending "on the long-established (and probably always self-evident) rule that a pleading must be sufficiently clear to the opposing party to enable that party to plead substantially in answer to it (if the party can) and to prepare for a trial in which the case proved by the evidence will not come as a surprise". 6. The respondent's counsel conceded before the primary judge, correctly in my view, that the imputation was ambiguous. In accordance with the principles to which I have referred, his Honour ought, with respect, to have struck out the imputation as embarrassing, but granted leave to replead in accordance with practice: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 (at [88]) per Hunt AJA (Santow JA agreeing). Capacity 1. I would reject the applicant's submissions as to the capacity issue. In my view the primary judge did not err in this respect particularly when the passages of the matter complained of extracted at [5] above are taken into account. It would be open to an ordinary reasonable reader, in my view, to infer that the $200,000 dispute referred to as underlying the "fierce discussion" between the men who confronted the deceased at his business prior to him being shot was that between the deceased and the respondent over their interests in the $400,000 Dural property. The second statement attributed to the acting Assistant Police Commissioner also adds to the passages to which the primary judge referred the implication that the range of suspects extended beyond Mr Bacic and was capable of including the class to which the respondent belonged. The only other person identified as having been embroiled in a dispute with the deceased of the sort the police were investigating (i.e. a business or personal dispute) was the respondent. As Lord Devlin said in Lewis v Daily Telegraph Ltd [1964] AC 234 (at 277), "A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done"; see also Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 (at 12]) per Gleeson CJ, McHugh, Gummow and Heydon JJ. Orders 1. Accordingly the appeal should be allowed in part. I propose the following orders: (1) Grant leave to appeal. (2) Direct the applicant to file a notice of appeal in the form of the draft notice of appeal in the White Book within 7 days. (3) Allow the appeal in part. (4) Set aside the orders made by Beech-Jones J on 4 March 2014. (5) Strike out the imputation pleaded in paragraph 6 of the Amended Statement of Claim filed on 23 December 2013 with liberty to replead. 1. As to costs, the Court was informed by counsel from the bar table that Fairfax strongly opposed the clarification approach before the primary judge and argued that the imputation should be struck out. For the reasons I have given, the applicant should have succeeded below on that point. However, the capacity question was also clearly strongly argued before the primary judge. I would propose, subject to the respondent having the opportunity to file any written submissions on the matter, that, each party should pay their own costs at first instance but that the respondent should pay the costs of the application for leave to appeal and of the appeal. 2. I would also direct the respondent to file and serve any written submissions on the proposed costs orders within 21 days of today's date and also direct the applicant to notify the respondent of these orders, the proposed costs orders and these directions on or before Friday 15 August 2015. In the event the respondent does not file any written submissions on the proposed costs orders, those costs orders shall be taken to have been made today. 3. LEEMING JA: I agree with McColl JA. 4. TOBIAS AJA: I agree with McColl JA. 5. McCOLL JA: The orders that I have proposed and the directions I have proposed should be given should therefore be taken to be the orders and directions of the Court. ********** Amendments 08 May 2015 - paragraph 25 - changed "[ REF _Ref395866996 \r \h 5]" to "[5]" 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: 08 May 2015