Plaintiff v First Defendant

Plaintiff v First Defendant - [2008] VSC 459 - VSC 2008 case summary — Zoe

[25]

"Exclusive: Horse tycoon's cash trail to drug lord

X's $1Mil mate

Car care tycoon Sean Buckley - owner of Champion international racehorse Miss Andretti - handed about $1 million in cash to drug czar X in a series of weekly payments.

The secret payments - up to $50,000 at a time - were handed over during visits to Mr Buckley's East Melbourne hair restoration salon - an offshoot of his UltraTune empire.

Mr Buckley also arranged a bogus client contract to hide his close dealings with X.

On one occasion X was given a cash cheque drawn on Mr Buckley's company.

The exact reasons for the transactions are unknown, but it is estimated about $1 million was passed to Mr X.

Mr Buckley has always maintained he had an innocent relationship with the drug baron.

He denied the latest allegations as 'entirely false and without foundation' in a letter from his lawyers.

But the Herald Sun can reveal the pair had a close financial and social association, linked by their love of horse racing.

X, who is banned from racecourses, has been suspected of disguising his ownership of racehorses by registering them in the names of friends and business associates.

Miss Andretti, a winner of Royal Ascot, is in Hong Kong for Sundays $2.2 million International Sprint.

The glamour mare, who won Australia's Racehorse of the Year last week, is favourite to win.

Mr Buckley's UltraTune empire - comprising car care outlets, hair restoration studios and extensive horse racing interests - is a leading Australian corporation.

But the 47-year-old businessman, who once entered into a bankruptcy arrangement, has been dogged by his association with X - right up to the time X breached bail and fled Australia on the eve of his sentencing on cocaine trafficking charges.

The Herald Sun has pieced together the strong association between X and Mr Buckley.

It also involved X's free use of the businessman's luxury Melbourne and Gold Coast apartments.

Everyone who spoke to the Herald Sun did so on condition of anonymity, fearing repercussions from one man in particular - Peter Sean Buckley.

The father of two is viewed by those who have had professional dealings with him as having a violent temper, acting like a commercial thug, and 'a man with eight different personalities'.

In 1992, he was convicted of fraud involving share dealing without a licence and using false names to operate accounts with stockbroking firms. He pleaded guilty and received a two year good behaviour bond.

He was also known to use his connection with X in business and staff situations.

Sources told of how X went to the UltraTune studio - where Mr Buckley had an upstairs office - to collect money.

'The cash was collected every week from Sean's UltraTune car service outlets - not the franchises - and taken to the Box Hill headquarters', a source said.

'It was bound together with rubber bands and placed in a brown paper bag'.

The money was sometimes collected by prostitutes, sometimes by a former Miss Nude World finalist.

It was usually delivered by a trusted senior UltraTune employee to the Ultra Hair Studio Pty Ltd Studio in Victoria Street, East Melbourne.

X would then call in and collect the cash.

'It was an open secret. A lot of people in the company were aware of it', a source said.

'They'd go upstairs and later lunch together at a small café next door. Sometimes one of Buckley's managers would join them'.

'They'd be sitting together, laughing and joking like they were old mates having a good day. Sean would often say he and X were mates'.

X would sometimes arrive in a black Mercedes driven by a young woman, which would be parked in a No Standing bay close to the hair studio. He would leave the driver behind the wheel and the engine running.

X often had a bodyguard, sources said.

'But there were times when he didn't bring protection. That is, one we could see', another witness said.

Sources said Mr Buckley later feared X visits could involve him in a possible police surveillance operation.

So he initiated a contract pretending that X was receiving laser hair treatment.

'He believed that he would explain X's weekly visits to his salon', another source said. 'Sean asked one of the staff to make up a false contract for laser (treatment) forX'.

'When asked why, Buckley turned to her and said: 'Just in case the Federal Police boys come around here'."

Sources told the Herald Sun X never received laser treatment.

'It was bull... . X had no hair and you can't grow hair on a bald head. X never received treatment', one said.

But Mr Buckley's lawyers told the Herald Sun X entered a contract with Ultra Hair for laser growth treatments 'but he quit from his contract after a few months'.

Mr Buckley publicly stated in 2004 he had inadvertently purchased X's farm at Willomavin, near Kilmore, claiming he was unaware at the time of its ownership.

Mr Buckley bought the farm, part of a Department of Justice asset seizure, for $1.1 million - several million dollars below its true value.

'I bought a farm off X. Well I didn't buy it off X, only because his wife owned it ... But I bought a farm off them, 'he told the Sunday Age six weeks ago.

'My lawyers handled everything and they executed it in the correct method. It went to the Supreme Court of Victoria and was approved'.

'And in those interviews with X when he was at the lawyer's office, he said he had a hair loss problem and he came to one of my hair loss studios, simple as that'."

[45]

30 All of the factual allegations, on which the imputations pleaded by the plaintiffs are based, are clearly stated as facts in the first article. It was not submitted on behalf of the defendants that the first article contained any express opinion or comment. Further, on their face, each of the six imputations, pleaded in paragraph 6 of the statement of claim, to which the defendants' plea of fair comment is directed, is factual. The plaintiffs rely on the various facts, which were referred to by Mr Wilson in his submissions to me, to found the imputations pleaded in sub-paragraphs 1, 2, 4 and 5 of paragraph 6(a) of the statement of claim, namely, as to the alleged criminal involvement of the plaintiff in the activities of X (imputation number 1), the making of secret and illicit payments by the plaintiff to X (imputations 2 and 4), and the involvement of the plaintiff in illicit and improper dealings with X (imputation number 5). If those imputations derive from the article, they would be found to constitute the meaning of the article, ascribed by the ordinary reader, taking into account the facts referred to by Mr Wilson. In one sense, the jury will have understood the ordinary reader to have undergone a process of implication, inference or the like. However, that is not the same as finding that the imputations, relied on by the plaintiff, were inferences or deductions of the writer conveyed as such to the ordinary reasonable reader. It is one matter for a publisher of material to identify a number of specific facts, and to express an opinion, comment or deduction based on those facts. It is quite another matter for the publisher of material to identify particular facts, and then leave it for the reader, as a "matter of impression"[27] to derive the same meaning from those facts. In the first instance, the express deduction by the writer would be capable of constituting comment; in the latter instance, the impression formed by the ordinary reasonable reader would not be understood as the comment or opinion of the writer.

[47]

32 For the same reason, in my view a jury could not reasonably conclude that the imputation pleaded in paragraph 6(a)(3) of the statement of claim - that the plaintiff is a close friend of drug baron X, and acted as a stooge for X's ownership of the racehorse Miss Andretti - constituted comment by the writer. The plaintiff relies on the allegations, in the article: that the plaintiff and X had a close financial and social association linked by the horse racing; that X, who is banned from race courses, and has been suspected of disguising his ownership of race horses by registering them in the names of friends and business associates; and that Miss Andretti is owned by the plaintiff. Again, it is true that the article does not, in express terms, allege that the plaintiff, as a close friend of X, acted as a stooge for his ownership of the race horse Miss Andretti. However, that imputation is alleged as the "sting" of the parts of the article to which I have just referred. While, again, that meaning may be the product of a process of implication or construction undertaken by the ordinary reasonable reader, that does not mean that the imputation pleaded and relied on by the plaintiff constitutes an expression of opinion by the writer of the article. The allegations contained in the article are entirely factual, and the defendants do not contend to the contrary. The imputation itself is couched as a factual allegation. It is not expressed as an opinion or deduction of the writer of the article. Rather, it is expressed as the sting or imputation conveyed to the ordinary reasonable reader by facts stated in the article. As the authorities, to which I have referred, make plain, the onus lies on the publisher to identify the comment or opinion which is sought to be defended as fair comment. None of the imputations pleaded by the plaintiff in respect of the first article - including the third imputation - are identified, at all, as the opinion or deduction of the publisher of the article.

[73]

50 In paragraph 14 of the defence, the defendants plead truth insofar as the first and fourth articles conveyed the imputation set out in paragraph 6(a)(2) of the statement of claim, namely, that the plaintiff made secret and illicit payments totalling about $1,000,000 in cash to X. By further particulars the defendants, in respect of that plea, refer to sub-paragraphs (iii) to (vi) of the particulars provided under paragraph 14. In substance, those particulars allege that between October and July 2004, X collected cash payments totalling $1,000,000 at the plaintiff's hair salon; that the plaintiff claimed in a television interview that he made those payments pursuant to a lease agreement in relation to a horse property at Kilmore which he had agreed to purchase from X; that the payments were made to X at a time when X's assets were the subject of orders obtained by the Director of Public Prosecutions pursuant to the Confiscations Act 1997; and that the plaintiff had instructed one of his employees to draw up a bogus contract between X and the plaintiff's company relating to hair replacement treatment, in case the Federal Police investigated. Mr Wilson complained, with some force, that those particulars did not specify how the payments, made by the plaintiff to X, were said, by the defendants, to be illegal. Recognising the force in that submission, the defendants obtained leave from me to amend their particulars to include two further particulars, namely: that the payments were not made pursuant to the lease agreement as claimed (on television) by the plaintiff or for any other legitimate purpose; and that the payments were made in breach of the confiscation order. Thus, Ms Schoff submitted that the defendants pointed to large payments of cash by the plaintiff to X, for which no legitimate purpose could be identified. Further, the defendants would seek to prove that the payments were not made pursuant to the lease agreement as claimed by the plaintiff. In addition, the plaintiffs would seek to establish that the payments were made in breach of the confiscation order obtained by the Director of Public Prosecutions in respect of X's assets.

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Cases Cited (8)