The imputations
7In Heath v Fairfax Media Publications Pty Ltd & Anor [2011] NSWSC 742 I said:
"4. The principles applicable to the correct approach of the court to an application such as this are too well-known to justify repetition, and were recently summarised in Robbie Waterhouse v The Age Company Ltd & Ors [2011] NSWSC 159, par 13. Importantly, the question of meaning turns on what the publication, taken as a whole, conveys to the reasonable reader, and this must always be a matter of impression. Ultimately, the question is what a jury could properly make of it. In circumstances where reasonable persons may differ as to their understanding of the article, the matter is one which must, in accordance with authority, be left to the jury."
8It was common ground that the essential element of each of imputations 6(a), (b), and (c) is the allegation that the plaintiff is a member of the Mafia. The defendants' principal challenge was on the ground that the article, in its natural and ordinary meaning, was incapable of conveying this allegation. Accordingly, it is convenient to deal with these imputations together. They are in the following terms:
"(a) The plaintiff is a member of the Mafia;
(b) As a member of the Mafia, the plaintiff built his business interests on the foundation of organised crime and murder;
(c) The plaintiff is the managing director of a winery which is a front or pretence for the Mafia and organised crime;"
9According to the Macquarie Dictionary (4 th Ed) the noun "Mafia" relevantly means:
"2 a criminal secret society of Sicilians or other Italians, at home or in foreign countries. 3 ( lower case ) ( sometimes humorous ) any group seen as resembling the Mafia by having a close-knit organisation, in-group feelings etc: green mafia ".
10In Brewer's Dictionary of Phrase and Fable (14 th Ed) "Mafia" is described as:
"A network of Sicilian criminal organisations which became increasingly powerful during 19 th Century."
The entry includes the comment:
"Nowadays mafia is frequently misused, becoming a vogue word loosely applied to any clique, exclusive circle, or influential group."
11The defendants raised no objection to the form of the imputations. The meaning of the term "the Mafia" was not in issue in this application. The matter proceeded on the basis that it is to be assumed the ordinary reasonable reader would understand "Mafia" in terms of the dictionary meaning i.e.: "a criminal secret society of Sicilians or other Italians, at home or in foreign countries".
12The article is presented to the reader as a report on the activities of members of the Casella family who control the company which produces wine under the "Yellow Tail" brand name. The several references to the "Casellas", the "Casella family", and "family" convey the impression of a close and united family. The late Filippo Casella and Maria Casella are identified as the parents of the plaintiff, John, and his brothers Joe and Marcello.
13The headline "Lawyers, guns and money: the sting in the Yellow Tail" and the opening paragraph:
"Having conquered the world with cheap Yellow Tail wine, it is now lawyers, guns and gas that pre-occupy the Griffith winemaking family the Casellas"
together with the photograph of the three brothers under the caption "Biggest thing in Griffith ... John, Marcello and Joe Casella" are capable of exciting the reader to adopt a suspicious approach to what follows.
14An account is given of the plaintiff's involvement with Casella wines in a joint venture project with a Mr Rodney Salfinger for the development of a natural gas project in Israel. The article reports on Mr Salfinger's claim, and its denial, that the plaintiff had been providing police in Papua New Guinea with weapons from Israel. It then reports on the plaintiff's expression of interest "... in a joint venture with the Czech aircraft maker Aero to build jets in Australia".
15Reference was then made to Marcello's plans to "... set up an ammunition factory near Griffith to produce up to 10 million shotgun cartridges a year".
16Then followed the passages upon which the plaintiff principally relied as being capable of conveying the imputations:
"Funding the family's plans is its success with Yellow Tail wine, which has taken the US by storm with an estimated annual turnover of $100 million.
A Herald investigation has revealed that since 2000 the family has bought almost $50 million worth of property, including a commercial building in St Leonards and a $16 million shopping centre on the Gold Coast. The rest of its property portfolio includes farms and wineries around their home town.
As a result, the Casellas are the biggest thing in Griffith. 'They might as well change the town's name to Casella', said one woman connected with the local authority. She has a point. The Griffith Show has been renamed the Casella Wines Annual Show. Every sporting team seems to be sponsored by the family. Even a humble barbecue facility bears a plaque thanking the family.
'The Casellas are good for the wine industry, they are good for Griffith and good for Australia,' said one resident. The more cynical believe the philanthropy is aimed at 'buying respectability'.
A decade ago the Casella winery was a tin shed on a 39-hectare block. Marcello Casella, who with his brothers runs the winery, was not long out of jail. He'd been imprisoned for five years over a $57 million marijuana crop in far north Queensland. His arrest, with eight others, was the result of a long investigation into organised crime by the National Crime Authority.
At the time of the arrest, the middle brother, John, was working for Tony Sergi, who runs Warburn Estate winery. The Woodward Royal Commission into Drug Trafficking found Mr Sergi was the 'principal' of the Italian Mafia in Griffith and oversaw its marijuana business. Mr Sergi was also named as being a prominent member of the Calabrian Mafia cell that organised the murder in 1977 of Donald Mackay, a local businessman who was campaigning against the drug industry. There is no suggestion the Casellas were involved in any of the alleged activities raised by the royal commission.
The Casella family was relatively unknown outside Griffith until a widely publicised extortion attempt last year. Matteo de Dominicis has pleaded guilty to demanding $5 million from the family. The court has heard he claimed he was owned the money for having supplied the late patriarch Filippo Casella with the seeds to establish a multimillion dollar marijuana crop in the late 1980s. De Dominicis also claims Filippo Casella was involved in the 1986 murder of his brother-in-law Nunzio Greco, who was described as a money launderer for the Mob. The Casella family has angrily denied the claims.
...
Back in Griffith, to commemorate the death of Filippo, at age 88, last year, the Casellas paid $400,000 for an opulent fountain made of Italian carrara marble which they want to install in the main street, Banna Avenue.
'This is a masterpiece and would be an attraction for the town and give it European appeal', Joe Casella, the eldest brother told the local newspaper.
Joe Casella, who has recently built his own Italian masterpiece complete with fountains, nymphs and lions, on Griffith's outskirts, is yet to convince the council of the soundness of his family's plans.
The favoured location for Filippo's memorial is opposite a marble statue of the murdered anti-drugs campaigner on which is inscribed: 'Donald Mackay was a man who had the courage and honesty not to look the other way.'"
17The plaintiff also sought support from the repetition of the headline, the photographs of the family and of Joe Casella's house above the caption "Ruling the world ... John, Joe and Marcello Casella with their parents, Filippo and Maria, at their winery near Griffith in 2008 ..." and the list of properties under the heading "In the Casella Cellar".
18Paragraphs 24 - 37 inclusive contained matter which described the plaintiff's dispute with, and litigation concerning, Mr Salfinger. It was treated as having little, if any, relevance, to the defendants' challenge.
19As the competing submissions have been recorded in the transcript it is unnecessary to recite them in detail.
20With particular emphasis on the passages quoted above, the plaintiff's submissions, in essence, were to the following effect. The reader is left with the impression that the operation of the winery is a family affair, and the plaintiff is closely involved with his brothers in running it. It is suggested that the family's philanthropy was motivated by the need to buy respectability, a need partly explained by Marcello's criminal past and link with organised crime. Further explanation is found in the passage which states that at the time of Marcello's arrest the plaintiff was working for Tony Sergi who is described as the principal of the Italian Mafia in Griffith and was involved through a Mafia cell in the murder of Donald Mackay. The connection with Tony Sergi conveys the suggestion of the plaintiff's criminality, the impact of which is not diminished by the disclaimer which, in terms, would be understood to be limited to the involvement of the Casellas in the matters raised by the Royal Commission.
21It was put that the criminality of family members was asserted by the publication of the extortionist's claims that the plaintiff's late father had been involved in multimillion dollar drug crops, murder, and money laundering. This impression would be reinforced in the mind of the reader by the concluding paragraphs which arguably convey the suggestion that the family's proposal to erect an elaborate monument to the father was an insult to the memory of Mr Mackay. The juxtaposition of the photograph of the family above the caption "Ruling the world ..." with that of Joe's house, and the list of valuable properties, in the context of the article as a whole, would invite the reader to conclude that it depicts the godfather and his criminal sons.
22With particular reference to imputation (a) it was submitted that the quoted passages plainly suggest that the family's wealth could be explained not only from the winery, but as the product of criminal activity.
23As the authorities hold, the question of meaning turns on what the publication, taken as a whole, conveys to the reasonable reader, which must always be a matter of impression. Mindful of the test of reasonableness, I am satisfied that the imputations which incorporate the allegation that the plaintiff is a member of the Mafia cannot be sustained. Accordingly, I propose to uphold the defendants' objection, and order that imputations 6(a), (b) and (c) be struck out.
24The question is whether the article is capable of conveying to the ordinary reasonable reader the unqualified meaning that the plaintiff is a member of the criminal organisation known as the Mafia. In my opinion, to be so capable it would be necessary that there be statements capable of meaning that the plaintiff is engaged in criminal and illegitimate conduct through that organisation.
25Even allowing for latitude in reading matters of detail, the reader would be expected to distinguish between the statements concerning Marcello and his late father, and those concerning the plaintiff. The past record of his brother, and the allegations against his father, provide no rational basis for a conclusion that the plaintiff was a criminal. Furthermore, the statement that the plaintiff was working for a mafioso, Tony Sergi, at the time of Marcello's arrest, about 15 years ago, is not reasonably capable of meaning that the plaintiff is a member of the Mafia. Taking the passage commencing "... the Casellas are good for the wine industry ..." and ending "... the Casella family has angrily denied the claims" with, and in the context of, the whole of the article, there is nothing, in my opinion, which connects the plaintiff with any personal criminality or involvement with the Mafia. The case sought to be made by the plaintiff is weakened further once it is accepted that the reasonable reader would not simply ignore the statements to the effect that the family's plans are funded from the Yellow Tail wine business, that the Casellas were not involved in any of the activities raised by the Royal Commission, and that the family denied the extortionist's claims.
26It is arguable that the article as a whole is capable of suggesting that the plaintiff is one of a close Italian family in control of substantial commercial operations, members of which have a criminal background and against whom allegations of criminality have been made. However, in my opinion, the guilt or involvement in criminal activities of the identified family members provides no rational basis for the inference that the plaintiff himself is involved in the criminal organisation, the Mafia. Such a conclusion would be the product of speculation on the part of the reader, and not the product of the article reasonably read. The following passage from the judgment of Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 (p 172) is apt:
"But, in the end, the test remains one of reasonableness - whether it is reasonable to hold the publisher responsible for a conclusion which is not reasonably understood to have been expressed or implied by what the publisher has said, but which the ordinary reasonable reader (or listener or viewer) has drawn for himself or herself, perhaps by having taken into account his or her own beliefs which have been excited by what was published. As I understand the law of defamation, that is fundamental to the publisher's responsibility. If the publisher does anything which makes it reasonable for him to be held responsible for something more (such as by an invitation to speculate), then he is made responsible for it."
27Imputation (e) is:
"(e) The plaintiff deceitfully pays for philanthropy in the name of his family in order to cover up his family's criminal activities."
28In my opinion this imputation is reasonably capable of being conveyed, and should be left to the jury. The play on words in the headline "... the sting in the Yellow Tail", the statement "... The more cynical believe the philanthropy is aimed at 'buying respectability'" which leads into the description of the activities and associations of Marcello, the plaintiff and the father, make it open for the ordinary reasonable reader to infer that the motivation for the philanthropy was as encapsulated in the imputation. Accordingly, the objection fails.
29I propose to grant leave to further amend the amended statement of claim if need be. It should not be assumed that any subsequent application for leave to amend would automatically succeed. The principles were considered by the Court of Appeal in McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308.