Plaintiff v First Defendant

2 The pleading has attached to it a hard copy of the material complained of by the plaintiff. That matter consists of a Yahoo! Seven search result which displays a photograph of the plaintiff with the caption "below is the host webpage http:/www.melbournecrime.bizhosting.com/Michael.Trkulja.htm with the image in its original context". Below that caption was displayed a webpage entitled "Melbourne Crime", immediately beneath which was displayed some nine photographs. Underneath those photographs was displayed an article, apparently cached from an article published in the Herald Sun newspaper of 20 November 2007, entitled "Shooting Probe Urged November 20, 2007". The article features a prominent photograph of the plaintiff. The text of the article is as follows:

"Police Chief Christine Nixon has been urged to re-open an investigation into an unsolved murder attempt.

Former music promoter Michael Trkulja was shot in the back by a hitman wearing a balaclava while dining at a St Albans restaurant in June 2004. The would be killer fled after his pistol jammed as he prepared to fire a second shot at Mr Trkulja, who had been enjoying a Sunday lunch with his elderly mother.

A Victoria Police document reveals detectives dropped the investigation because of a lack of evidence.

But Mr Trkulja, 58, claims he now knows the identity of the hitman and those who hired him.

He says he has passed the names to police.

'He (the hitman) was offered $10,000 to kill me. I know who sent him and they know that I know who they are' Trkulja told the Herald Sun.

'I've told the police. I just want justice. Nobody should be shot like this'.

Mr Trkulja's lawyer, high profile solicitor George Defteros, has written to Ms Nixon seeking a fresh investigation and the request is being considered."

3 In paragraph 5 of the proposed amended statement of claim, the plaintiff pleads that in its ordinary and natural meaning the matter bears four defamatory imputations of him ("false innuendos"), namely:

"(a) the plaintiff is a criminal;

(b) the plaintiff is a participant in the Melbourne crime scene;

(c) the plaintiff was so involved with crime in Melbourne that his rivals had hired a hitman to murder him;

(d) the plaintiff is such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime in Melbourne."

4 Alternatively the plaintiff seeks to plead, in paragraph 6 of the proposed amended statement of claim, that the matter bears six defamatory imputations to the plaintiff ("true innuendos") by reason of some seven extrinsic facts pleaded by the plaintiff in paragraph 7 of the proposed amended pleading. The first four true innuendos, pleaded in paragraph 6, are a replica of the false innuendos sought to be pleaded in paragraph 5. The additional two innuendos sought to be pleaded in paragraph 6 are as follows:

"(e) the plaintiff is an associate of or associated with BF[1], an alleged murderer and a drug trafficker;

(f) the plaintiff is an associate of or associated with Dennis Tanner, an alleged murderer."

5 The parties were basically agreed as to the relevant principles, which are applicable in relation to the application by the plaintiff for amendment, and in relation to the defendants' application for summary dismissal of the proceeding. I shall refer, shortly, to those principles. On behalf of the defendants, Mr Wheelahan SC, who appeared with Mr O'Meara, submitted that the matter published by the defendants is not reasonably capable of bearing any of the imputations sought to be pleaded by the plaintiff, either as deriving from the ordinary and natural meaning of the material, or as deriving from it in light of the facts pleaded by the plaintiff in paragraph 7 of the proposed amendment. Mr Wheelahan submitted that the gravamen of the article, complained of by the plaintiff, was that the plaintiff was the victim of a serious crime. He submitted that neither in its ordinary and natural meaning, nor by virtue of the extrinsic facts pleaded in paragraph 7 of the proposed amendment, could the words reasonably be construed, by the ordinary reasonable reader, to bear the implication sought to be alleged by the plaintiff, namely, that he was implicated in organised criminal activity in Melbourne. He submitted that each of the four meanings, sought to be pleaded by way of false innuendos, are dependent on the first meaning, namely, that the plaintiff is a criminal. He submitted that in its ordinary and natural meaning the words were incapable of conveying that imputation. Mr Wheelahan also criticised the second imputation - that "the plaintiff is a participant in the Melbourne crime scene" - on the basis that it is so wide and unspecific as to leave the plaintiff at large, at trial, in formulating the manner in which he would rely on that imputation before the jury.

6 Mr Wheelahan further submitted that the plaintiff's case is not advanced by the pleading by him of the extrinsic facts specified in paragraph 7 of the amended pleading. Those facts, primarily, are that the nine photographs, above the article, include photographs of persons who were, or are alleged to have been, engaged in serious criminal activity in Melbourne; that two of the photographs, appearing under the title, are photographs of BF and Tanner, each of whom were alleged to have been implicated in murder and other criminal activities; that Melbourne has had a notorious and violent criminal underworld operating in suburban and central Melbourne for a number of years; and that the website is an internet website, which chronicles the conduct of criminals and alleged criminals involved in the Melbourne underworld. Mr Wheelahan submitted that none of those facts, if known to the ordinary reasonable reader, would have caused such a reader to conclude that the article bore any of the meanings specified in paragraph 6 of the proposed amended statement of claim. Rather, he submitted that each of those facts do not disturb the central gist of the article, namely, that the plaintiff is a victim of a serious crime, and is aggrieved by it. Mr Wheelahan also submitted that the last two "true innuendos" sought to be pleaded by the plaintiff - his association with BF and his association with Tanner - could not reasonably be derived from the article. For, he submitted, there is no explanation why those two individuals have been selected from the group of nine identities, whose photographs appear above the article.

7 In response, Mr Lancaster SC, who appeared for the plaintiff, submitted that the central gist of the article is to associate the plaintiff with organised criminal activity in Melbourne. That thrust of the article, he contended, was to be derived from its heading ("Melbourne Crime"), the nine photographs immediately under that heading, and the prominent photograph of the plaintiff himself. He submitted that the balance of the article, consisting of its text, did not provide a sufficient "antidote" to that "bane". In particular, the article referred to the fact that the person, who attempted to kill the plaintiff, was a hitman, who had been offered a large sum of money to murder the plaintiff. He submitted that the ordinary reasonable reader of the matter would readily infer that such a hitman was paid by a member of the Melbourne underworld, and that the plaintiff was not simply a random target of the crime, but, rather, was a specific target of it, because of his involvement in the same sphere of activity. The ordinary reasonable reader would be readily cognisant of the fact that, ordinarily, a person is not shot in the back by a hitman, while enjoying a Sunday lunch with his mother.

8 Mr Lancaster further submitted that the imputations, sought to be pleaded by the plaintiff, are reinforced by the extrinsic facts alleged in paragraph 7 of the proposed amended pleading. He contended that most of those facts were of such notoriety that they would, in any event, be known to the ordinary reasonable reader. However, if the plaintiff is required to rely on a true innuendo, those facts would have revealed that the photographs appearing immediately above the photograph of the plaintiff were images of prominent Melbourne criminal identities. The website itself chronicled the conduct of persons alleged to be involved in the criminal underworld. Mr Lancaster submitted that those factors lend support to the imputations sought to be pleaded by the plaintiff, both as false innuendos and true innuendos.

9 As I stated, the principles, which apply to an application such as this, were not in dispute. Essentially, I should only disallow the plaintiff's application to amend the statement of claim, if such an amendment would be futile, in the sense that if the amendment were contained in a pleading filed in the court, it would be liable to be struck out[2]. Similarly, an application for summary judgment should only be acceded to in a clear case, in which the court is persuaded that the plaintiff has no arguable prospects of success at trial[3].

10 The critical question, therefore, is whether a jury, properly instructed, could reasonably conclude that the words bore the imputations sought to be pleaded by the plaintiff, or imputations which are a variant of them, and which are defamatory of the plaintiff[4]. It is not for me to determine whether a jury should, or would, find that the words bore those imputations, or were defamatory of the plaintiff. Rather, the critical test is whether a jury could reasonably conclude that the words bore the meanings defamatory of the plaintiff.

11 The test of whether a publication is defamatory of a plaintiff depends on the question whether the matter, published by the defendant, would tend to lower the plaintiff in the minds of ordinary reasonable members of our society[5]. In alleging that the matter was defamatory of him, the plaintiff is required to plead meanings (imputations) which, he will contend at trial, the words bore, and which were defamatory of him. At the trial of the proceeding, the plaintiff will be tied to those meanings, in contending that the jury should find that the matter was defamatory of him. Further, at trial, the jury will be required to determine whether the words were defamatory of the plaintiff in the meanings alleged by the plaintiff, or in meanings which are a variant of the plaintiff's imputations, and which are no more defamatory of the plaintiff than those imputations[6].

12 The imputations, pleaded by a plaintiff, may either consist of imputations which the words bore in their ordinary and natural meaning ("false innuendos"), or of imputations, which comprise meanings conveyed to readers of the words, who knew of particular facts (extrinsic facts), and by virtue of which facts the words conveyed those defamatory meanings to readers cognisant of those facts. In pleading such imputations ("true innuendos"), the plaintiff is required to plead and prove the extrinsic facts relied upon by him as giving rise to the defamatory imputation.

13 The question, whether the matter complained of by the plaintiff gave rise to the imputations sought to be pleaded in the proposed amended statement of claim, is to be determined from the standpoint of the ordinary reasonable reader. The attributes of that hypothetical person were described by me in Soultanov v The Age Company Limited & Anor[7] in the following terms:

"The hypothetical 'ordinary reasonable' reader has been described as an ordinary person who does not live in an ivory tower, and who reads between the lines in light of his or her general knowledge and experience of worldly affairs. Such a reader is described by the law as someone who is not 'avid for scandal' and who is neither 'unusually suspicious nor unusually naïve'. He (or she) does engage in a degree of loose thinking, and is understood to read between the lines. In particular, it is important to take into account that the ordinary reasonable reader is a lay person, not a lawyer, and that his or her capacity for implication is much greater than that of a lawyer. On the other hand ... it is necessary to draw a distinction between the reader's understanding of what the article is actually saying, and a judgment or conclusion which the reader may reach as a result of his or her own beliefs and prejudices after reading the particular matter in question."

14 Notwithstanding the capacity of the ordinary reasonable reader to read between the lines, and to indulge in a degree of loose thinking, the authorities make it plain that an imputation should be capable of being supported "by more than the pleader's ingenuity"[8].

15 Where the plaintiff seeks to rely on a true innuendo, the question is not whether the words actually conveyed to persons, who knew the relevant extrinsic facts, the imputations pleaded by the plaintiff; rather, the critical test is whether the words would have conveyed to the mind of an ordinary reasonable reader, cognisant of the extrinsic facts, the imputations alleged[9].

16 Bearing in mind those principles, I turn, then, to the question whether the material complained of by the plaintiff is reasonably capable of bearing the imputation sought to be pleaded by the plaintiff in paragraphs 5 and 6 of the proposed amended pleading. As I stated, the critical question is whether a jury, properly instructed, could reasonably conclude that the matter published by the defendants conveyed the meanings (or an appropriate variant of them) alleged by the plaintiff, either by way of their ordinary and natural meanings, or by reason of the extrinsic facts pleaded, to the ordinary reasonably reader of it.

17 I turn, first, to the four false innuendos sought to be pleaded in paragraph 5 of the proposed amended pleading. I put to one side, for the moment, the second imputation, pleaded in paragraph 5(b). Reading the material as a whole, I have grave reservations whether a jury, properly instructed, would conclude that the article was capable of bearing the imputation sought to be alleged by the plaintiff. That is, if the ordinary reasonably reader were a person who did not know any of the extrinsic facts sought to be pleaded in paragraph 7 of the proposed amended pleading, I very much doubt that a jury would conclude that the words, in their ordinary and natural meaning, conveyed any of the imputations sought to be pleaded in paragraph 5. However, as I stated the critical question is whether a jury could reasonably conclude that the article bore any of those meanings. It is this question which gives me some pause.

18 There are a number of aspects about the article, identified by Mr Lancaster, which, in my view, do give rise to a tenable argument that, in their ordinary and natural meaning, the words meant more than that the plaintiff was simply an innocent victim of an attempt to kill him. The article appears on a "Melbourne crime" website. The person who attempted to kill the plaintiff is identified as a hitman, who had been offered a substantial amount of money to murder the plaintiff. In light of those facts, the jury could reasonably conclude that the ordinary reasonable reader would have understood that the hitman, and the person who paid him, were each members of what might be described as the Melbourne criminal underworld. The attempted killing was deliberate, and the jury may properly conclude that the motive for it arose out of a connection between the plaintiff and the person who paid for the attempt on his life. That impression is strengthened by the statement that the plaintiff "now" knows the identity of the hitman and "those who hired him". The ordinary reasonable reader is, as I stated, someone who reads between the lines, in light of his or her general knowledge and experience of worldly affairs. That general knowledge would tell the ordinary reasonable reader that, at the time of the alleged crime, the Melbourne underworld was involved in a violent internecine war, the prime targets of which were members of competing camps in the underworld. While those particular facts have been pleaded by way of extrinsic innuendo, a jury may conclude that they are part of the worldly experience and general knowledge of the ordinary reasonable reader to whom the words were available. Bearing those matters in mind, and while I have some reservations about the matter, I am not persuaded that a jury, properly instructed, could not reasonably conclude that the words conveyed to the ordinary reasonable reader that the plaintiff was shot because he was a member of the criminal underworld, or so associated with it, so as to give rise to an attempt on his life. In my view, therefore, the words published of the plaintiff are, in their ordinary and natural meaning, reasonably capable of bearing the meanings specified in paragraph 5(a), (c) and (d) of the proposed amended statement of claim.

19 On the other hand, I agree with the submission by Mr Wheelahan that the imputation sought to be pleaded in paragraph 5(b) - that "the plaintiff is a participant in the Melbourne crime scene" - is so vague and imprecise as to not to serve a legitimate purpose as an imputation, namely, to properly inform the defendants of the case, which the plaintiff will seek to make at the trial of the proceeding. In particular, the word "participant", and the phrase "Melbourne crime scene", are each so vague that, in combination, they deprive the imputation of any useful work. In submissions, Mr Lancaster stated that the imputation was intended to bear the meaning that the plaintiff "is a criminal engaged in organised criminal activity in Melbourne". That meaning is essentially captured by the imputations expressed in paragraphs 5(a), (c) and (d). In its current form, paragraph 5(b) is so vague as to be embarrassing as a pleading, and I would not give leave to the plaintiff to include it in his proposed amended statement of claim. For the same reason, I would disallow the imputation in paragraph 6(b) of the proposed pleading.

20 I turn, then, to the "true innuendos" sought to be pleaded by the plaintiff. In my view, a jury might reasonably conclude that the material published by the defendants conveyed to the ordinary reasonable reader, seized of the facts pleaded in paragraph 7, the first, second and fourth meanings specified in paragraph 6 of the proposed amendment. Each of the nine photographs, depicted above the article, are images of persons who have been alleged, in recent years, to have been involved in serious criminal activity in Melbourne. At least seven of them are recognisable as persons who were involved in the "underworld war" referred to in the extrinsic facts. At least four, if not five, of them can be recognised as persons who were fatal victims of that violent period. The extrinsic facts also plead that the internet website, on which the matter is contained, chronicles the conduct of criminals and alleged criminals "involved in the Melbourne criminal underworld". The extrinsic facts set out, in summary form, the violent nature of the criminal underworld over the last decade. In my view, if those facts are proven at trial, the jury might reasonably conclude that the words bore the imputations, alleged in paragraph 6(a), (c) and (d), to any ordinary reasonable member of the community who knew of those facts.

21 On the other hand, I agree with Mr Wheelahan that the words are not reasonably capable of giving rise to the last two "true innuendos" sought to be pleaded in paragraph 6 of the proposed amended statement of claim. None of the extrinsic facts explain why it is alleged, in those imputations, that the words meant that the plaintiff was an associate of BF or Tanner. Nor do I consider that, save in a broad sense, the words were capable of giving rise to the meaning that the plaintiff was an associate of any of the identities whose photographs appear above the article. Rather, it is arguable that the ordinary reasonably reader, cognisant of the extrinsic facts, would understand that the words meant that the plaintiff was a part of the criminal underworld inhabited by most, if not all, of those identities. That meaning is contained in the imputations alleged in paragraph 6(a), (c) and (d). For those reasons I would not allow subparagraphs (e) and (f) of paragraph 6 of the proposed amendment.

22 For the foregoing reasons I have reached the following conclusions:

(1) The matter published by the defendants, in its ordinary and natural meaning, is capable of giving rise to the defamatory imputations pleaded in paragraph 5(a), (c) and (d) of the proposed amended statement of claim.

(2) By reason of the extrinsic facts specified in paragraph 7 of the proposed amended statement of claim, the matter is capable of giving rise to the true innuendoes specified in paragraph 6(a), (c) and (d) of the proposed amended statement of claim.

(3) Accordingly, the plaintiff should be given leave to file and serve an amended statement of claim, in the form of the proposed amended statement of claim, but subject to the deletion from it of paragraph 5(b), and paragraph 6(b), (e) and (f).

(4) It follows that the application by the defendants for summary judgment against the plaintiff should be dismissed.

[1] The identity of BF is the subject of suppression orders of this Court, and accordingly the pseudonym "BF" has been substituted for his name in this judgment.

[2] Commonwealth v Verwayen (1990) 170 CLR 390, 456.

[3] See for example Dey v Victorian Railways Commissioner [1949] HCA 1; (1948) 78 CLR 62, 92 (Dixon J); General Steel Industries Limited v Commissioner for Railways (New South Wales) [1964] HCA 69; (1964) 112 CLR 125, 129 (Barwick CJ).

[4] Jones v Skelton [1964] NSWR 485, 491.

[5] See for example Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, 466 to 467 para [4]-[6].

[6] Chakravati v Advertiser Newspapers Limited (1998) 193 CLR 519; David Syme & Co Limited v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667, 673 [17] (Ormiston JA), 686 [52] (Charles JA).

[7] [2009] VSC 145, [11] (citations omitted).

[8] Chapman & Chapman v Australian Broadcasting Corporation [2000] SASC 146; (2000) 77 SASR 181, 190 [64] (Lander J).

[9] Hough v London Express Newspaper Limited [1940] 2 KB 507, 511 to 512 (Slesser LJ).