4.2 Imputations
62 Against this background, the specific imputations can be considered.
63 Imputation 8.1 is that by permitting his bank, Euro Pacific, to be used as a vehicle for around 100 Australian customers to commit tax evasion, Schiff facilitated the theft of millions of dollars from the Australian people. The respondents' proposition that there is no suggestion in the broadcast that Mr Schiff had such knowledge or was so involved is untenable. The ordinary, reasonable viewer would understand from the broadcast that:
(1) people evading tax in Australia were involved in the theft of hundreds of millions of tax dollars each year and the Australian Tax Office was getting its stolen money back;
(2) Mr Schiff's bank has hundreds of Australian clients;
(3) Mr Schiff's bank and around 100 of its Australian customers are at the centre of an enormous worldwide tax evasion investigation;
(4) the money trail shows the secret tactics used by super wealthy Australians to dodge tax;
(5) the money trail all leads to Mr Schiff;
(6) ordinary Australian taxpayers are being ripped off by wealthy crooks who avoid paying their share of tax by setting up accounts with offshore banks like Euro Pacific;
(7) the investigation disclosed that it was fairly apparent that Mr Schiff was operating in a manner that was intended to attract customers who were looking to either evade tax or perhaps launder money;
(8) Mr Schiff located the bank he co-owns, Euro Pacific in Puerto Rico partly because he knew it offered the kind of secrecy his clients wanted;
(9) Mr Schiff is a business celebrity partly because of his publicised opposition to paying federal income tax;
(10) Mr Schiff and Mark Anderson are so unscrupulous they would not have any qualms about dealing with criminals, money launderers or tax dodgers;
(11) Mr Schiff runs Euro Pacific bank - it is his bank and he is responsible for it; and
(12) Australians, including notorious criminals, are involved in stashing their dirty money in Euro Pacific bank.
64 It is not to the point that some of these statements are made by people other than the journalist. In Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 McColl JA (with whom Bathurst CJ and Gleeson JA agreed) said at [140]-[141]:
In Rivkin [John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77] (at [27]), McHugh J said (in dissent, but not doubted as correctly stating this principle):
[27] The rule that the publication must be read as a whole is particularly important where the publication reports a defamatory statement by a third party. The general rule is that a person who publishes the defamatory statement of a third party adopts the statement and has the same liability as if the statement originated from the publisher. Accordingly, it is not the law that a person reporting the defamatory statement of another is only liable if he or she adopts the statement or reaffirms it. But, as Griffith CJ pointed out in Ronald v Harper, although as a general rule a person who repeats a defamation adopts it as his or her own statement, it is not "a rule of invariable application". The context of the statement may show that it is refuted or undermined by other parts of the publication ... (footnotes omitted)
Thus, mere publication of defamatory hearsay suffices to attract liability, however the context in which the defamatory hearsay was published, including whether it was, in fact, "adopted" by the republisher may be relevant to the nature and quality of the republisher's liability: Obeid [John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485] (at [98]). The primary publication of the defamatory hearsay amounts, without more, to an "adoption of that statement": Obeid (at [99]).
65 Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2018] NSWCA 325; (2018) 99 NSWLR 173 at [107]-[108] reinforces the importance of the publication as a whole in determining a re-publisher's liability for the repetition of the defamatory hearsay.
66 In the present case, the statements by third parties in the broadcast are presented as reliable and are otherwise endorsed by the content and context of the broadcast as a whole. For example, Mr Chevis is described as a former federal police detective who, after leaving the Australian Federal Police (AFP), has advised governments around the world on anti-money laundering. His knowledge of Mr Schiff's "operating in a manner that was intended to attract customers who were looking to either evade tax or perhaps launder money" is presented as being based on his personal knowledge obtained through his own investigations. There is no suggestion or hint in the broadcast that Mr Chevis might be wrong. The content and context of the broadcast as a whole adopts and reinforces the statements of Mr Chevis.
67 The same applies to Mr Ogilvie, who is introduced in the broadcast as "Euro Pacific's IT manager". He is not presented as some disgruntled former employee. He is "tracked down" to "find out what really happens inside the bank". According to the broadcast he knows what really happened because he worked closely with Mr Anderson, the bank's president and co-owner. He joined the bank innocently thinking it would "develop into a proper company", but that never happened. Instead he discovered that Mr Anderson and Mr Schiff were so unscrupulous that they would not have any qualms about dealing with criminals or money launderers.
68 Mr Day's resources are the "tax man's secret weapon". He is the Deputy Commissioner of the Tax Office, leading investigators who are "punching above [their] weight". He could call on an international tax crime fighting task force, the J5. The J5 had zeroed in on Euro Pacific bank. The J5 all believe Mr Schiff's bank was in fact facilitating tax evasion and serious organised crime. This is not a statement of mere suspicion of Mr Schiff's bank facilitating tax evasion and serious organised crime. It is a statement of the belief attributed to all J5 members, who are international tax crime fighters. The message conveyed to the viewer is that it is true that Mr Schiff's bank is facilitating tax evasion and serious organised crime. This sting is not undermined by the later exchange in which the journalist asks Mr Day "can you confirm that the target was suspected to be facilitating international money laundering?". The damage has already been done and is reinforced by the question which follows "is it safe to say the criminality, the alleged money laundering, the alleged tax evasion had to be in your mind of such a level to warrant that extraordinary action?" and Mr Day's answer "it's a very significant investment by all the countries involved". In this exchange, the journalist's failure to specify the "target" also suggests it is equally plausible that it is either Euro Pacific bank or Mr Schiff personally or both who are the subject of the international tax crime investigation.
69 The ordinary, reasonable viewer would understand the broadcast to be conveying to them that by Mr Schiff permitting his bank, Euro Pacific, to be used as a vehicle for around 100 Australian customers to commit tax evasion, Schiff facilitated the theft of millions of dollars from the Australian people.
70 Imputation 8.2 is that Schiff orchestrated an illegal tax evasion scheme. This imputation is conveyed to the ordinary, reasonable viewer. For the reasons set out above, the broadcast tells the viewer that Mr Schiff located Euro Pacific bank in Puerto Rico because it offered the secrecy his clients wanted. He intended Euro Pacific bank to be used by tax evaders. His clients include Australians who are "wealthy crooks" who avoid paying their share of tax by using, amongst others, Euro Pacific bank. He runs and is responsible for Euro Pacific bank. His bank is used by Australians to stash their dirty money. His bank's partnership with the Perth Mint means that the Mint's gold may be held beneficially for criminals around the world. While the imputation relies on implication and inference, the implication and inference would be reached by the ordinary, reasonable viewer - Mr Schiff founded and runs Euro Pacific bank at least in part to facilitate the use of the bank by customers involved in illegally evading tax and the bank is so used. This is Mr Schiff orchestrating an illegal tax evasion scheme, at least in the mind of the ordinary, reasonable viewer. The ordinary, reasonable viewer would not take a lawyer's view of Mr Schiff orchestrating an illegal tax evasion scheme as requiring Mr Schiff's knowing involvement in specific instances of tax evasion by known persons. They would understand that if Mr Schiff founded and runs Euro Pacific bank at least in part to facilitate the use of the bank by customers involved in illegally evading tax and the bank is so used, then Mr Schiff orchestrated an illegal tax evasion scheme.
71 Imputation 8.3 is that Schiff committed tax fraud. This imputation is conveyed to the ordinary, reasonable viewer by reason of the same matters referred to above for imputations 8.1 and 8.2. The ordinary, reasonable viewer would understand that a person who has intentionally permitted the bank which he owns, runs and is responsible for to be used for tax evasion must have committed tax fraud. Such a person would not distinguish (or think about) any difference between knowingly and intentionally facilitating other people to commit tax fraud and personally committing tax fraud in relation to one's own money. They would assume that a person who has orchestrated an illegal tax evasion scheme is a tax fraud irrespective of the person's own tax affairs in respect of their own money. In the present case, that imputation would be supported by the insistence in the broadcast that Mr Schiff is a person who hates paying tax.
72 Imputation 8.4 is that Schiff knowingly facilitates tax fraud, in that he established his bank, Euro Pacific, in Puerto Rico for the purpose of enabling his customers to illegally hide their money from tax authorities. This imputation is conveyed to the ordinary, reasonable viewer by reason of the same matters referred to above for imputations 8.1 and 8.2.
73 Imputation 8.5 is that Schiff knowingly assisted around 100 Australians to illegally evade their tax obligations. This imputation is conveyed to the ordinary, reasonable viewer by reason of the same matters referred to above for imputations 8.1 and 8.2.
74 Imputation 8.6 is that Schiff, through his bank Euro Pacific, knowingly assisted the notorious Australian criminal Simon Anquetil to perpetrate a $100 million tax fraud. The parts of the broadcast relevant to Mr Anquetil include:
(1) the context that Mr Chevis wants ordinary Australian taxpayers to "see how they're being ripped off by wealthy crooks who avoid paying their share of tax by setting up accounts with offshore banks like Euro Pacific";
(2) Mr Chevis describing how if you have a million dollars you want to hide from the tax man you take steps including "you're [sic] Seychelles company gets itself a bank account with a bank like Euro Pacific Bank. Now that you have your bank account you deposit your million dollars into it and you use it as you would use any other bank account. If the tax man ever comes asking all they get from Euro Pacific Bank is the name of a company in the Seychelles";
(3) immediately thereafter the journalist saying "it's as simple as it is irresistible for tax avoiders like Simon Anquetil. International enforcement sources have told 60 Minutes he was one of the Australians using Euro Pacific. From 2014 to 2017, Anquetil engineered the biggest tax scam in recent Australian history, ripping off more than $100 million dollars" and asking Mr Chevis "why would the engineer of Australia's largest tax fraud want to bank with Euro Pacific Bank?"; and
(4) the journalist saying "if he didn't already know it, it [the J5 action in January 2020] must have alerted him to the fact that questionable figures like Simon Anquetil were using his bank" and asking Mr Schiff "how could such a notorious crime figure be allowed to get through the front door of your bank?" and, when Mr Schiff denied knowledge, saying "but the bank trades on your name. The bank uses you… as its key piece of marketing though so therefore you have a responsibility don't you? When the, if the bank goes south it's on you", and "I'm putting to you that your bank has accounts for organised crime figures".
75 I do not accept that the broadcast conveyed to the ordinary, reasonable viewer that Mr Schiff, through his bank Euro Pacific, knowingly assisted the notorious Australian criminal Simon Anquetil to perpetrate a $100 million tax fraud. This is because the broadcast (considered as a whole) does not suggest that the $100 million Mr Anquetil ripped off in a tax scam was banked in Euro Pacific bank. It says that Mr Anquetil was a customer of Euro Pacific bank. The broadcast does not suggest that Mr Schiff knew that Mr Anquetil was stashing the $100 million from his tax fraud in Euro Pacific bank or that he even knew who Mr Anquetil was. The broadcast suggests only that Mr Schiff might have and, indeed, should have known that Mr Anquetil was a notorious crime figure who was a customer of Euro Pacific bank.
76 There is a key difference between imputation 8.6 and the other imputations already discussed. It is that the other imputations involve Mr Schiff knowingly and intentionally founding and running his bank so that it could be used by tax evaders (generally and the 100 Australians mentioned) and was in fact used by tax evaders to evade tax (generally and the 100 Australians mentioned). Imputation 8.6 concerns Mr Schiff knowingly assisting a specific person to commit a specific tax fraud.
77 Imputation 8.7 is that Schiff, through his bank Euro Pacific, knowingly assisted Australian criminal Simon Anquetil to move his illegally obtained money offshore. For the same reasons as set out above for imputation 8.6, I do not accept that imputation 8.7 is conveyed by the broadcast.
78 Imputation 8.8 is that Schiff, through his bank Euro Pacific, knowingly assisted convicted drug trafficker Darby Angel to hide the proceeds of his crimes. The parts of the broadcast dealing with Mr Angel include:
(1) the journalist saying "according to official sources this man, Darby Angel, also started an account with the Euro Pacific Bank. Angel claims to be a Hollywood film financier running a multi-million dollar investment fund out of Dubai. But he is also a convicted drug trafficker", "we called Angel but he refused to comment publicly other than to say he'd never heard of Euro Pacific";
(2) the journalist asking Mr Chevis "why would a drug trafficker want to put their money in a Puerto Rican bank?" and Mr Chevis answering "if you can place ah your money in an account that isn't linked to your name then the chances of having that money seized and taken from you ah is that much less"; and
(3) the journalist asking Mr Chevis "the fact that multiple crooks, people with recorded criminal convictions for serious offending have bank accounts at Euro Pacific Ban[k]. What does it say about the bank's compliance culture?" and Mr Chevis answering "it suggests that perhaps they were waiving customers through without actually really considering the risk that those customers were going to be placing proceeds of crime in the accounts that they were opening".
79 I do not accept that the broadcast conveyed to the ordinary, reasonable viewer that Mr Schiff, through his bank Euro Pacific, knowingly assisted convicted drug trafficker Darby Angel to hide the proceeds of his crimes. The broadcast does not suggest that Mr Schiff knew Mr Darby, knew that he was a drug trafficker, or knew that he used Euro Pacific bank to hide proceeds of crime. As with imputation 8.6, the specificity of imputation 8.8 is relevant to my conclusion that imputation 8.8 is not conveyed by the broadcast.
80 Imputation 8.9 is that Schiff, through his bank Euro Pacific, knowingly assisted convicted criminals and organised crime figures to hide the proceeds of their crimes. I consider that the ordinary, reasonable viewer would draw a distinction between "convicted criminals and organised crime figures" and tax evaders. They would know that tax evaders are not necessarily convicted criminals and organised crime figures. The broadcast does say:
(1) "multiple crooks, people with recorded criminal convictions for serious offending have bank accounts at Euro Pacific Bank";
(2) "Peter Schiff was operating in a manner that was intended to attract customers who were looking to either evade tax or perhaps launder money";
(3) "Australian police suspect Euro Pacific poses a grave organised crime threat to the nation that must be confronted at any cost";
(4) "the fact that this particular bank has been marked as a priority target for Australian authorities who are aiming to reduce the laundering of proceeds of crime and tax evasion is really significant";
(5) "I don't think [they, Mr Schiff and Mr Anderson] would have any qualms about ah you know dealing with, with criminals or money launderers in general or tax dodgers. Um yeah they have no scruples";
(6) "how could such a notorious crime figure be allowed to get through the front door of your bank";
(7) "I'm putting to you that your bank has accounts for organised crime figures";
(8) "why is it the tax authorities in Australia, the United Kingdom, Canada, America and the Netherlands all believe your bank is facilitating tax evasion and serious organised crime";
(9) "is it safe to say the criminality, the alleged money laundering, the alleged tax evasion had to be in your mind of such a level to warrant that extraordinary action"; and
(10) "it may be many months before we find out exactly how many other Australians are stashing their dirty money in Euro Pacific Bank".
81 However, I am not persuaded that the broadcast conveys to the ordinary, reasonable viewer that Mr Schiff, through his bank Euro Pacific, knowingly assisted convicted criminals and organised crime figures to hide the proceeds of their crimes. As discussed, it does convey that through his founding, running and responsibility for Euro Pacific bank he knowingly facilitated people to illegally evade tax (see above). It also conveys that some of those people are convicted criminals and organised crime figures hiding the proceeds of their crimes, but draws a distinction between "tax dodgers" and serious criminals. It does not convey that Mr Schiff knowingly assisted those convicted criminals and organised crime figures to hide the proceeds of their crimes. Rather, it conveys that by Mr Schiff knowingly facilitating people to illegally evade tax through his founding, running and responsibility for Euro Pacific bank, the bank has also been used by convicted criminals and organised crime figures to hide the proceeds of their crimes. That is different because it does not involve Mr Schiff's knowing assistance to be of the convicted criminals and organised crime figures to hide the proceeds of their crimes.
82 Imputation 8.10 is that Schiff, through his bank Euro Pacific, knowingly assisted convicted criminals and organised crime figures to launder the proceeds of their crimes. For the same reasons given in respect of imputation 8.9, I am not persuaded imputation 8.10 is conveyed by the broadcast.
83 Imputation 8.11 is that through his bank Euro Pacific, Schiff poses a grave organised crime threat to Australia. The broadcast includes:
(1) "I think there's a significant risk that some of the gold held within the Perth Mint by customers of the Euro Pacific Bank may be held beneficially for criminals in other parts of the world";
(2) "Australian authorities were so concerned about Euro Pacific they designated it an Australian priority organisation target. This means Australian police suspect Euro Pacific poses a grave organised crime threat to the nation that must be confronted at any cost";
(3) "the fact that this particular bank has been marked as a priority target for Australian authorities who are aiming to reduce the laundering of proceeds of crime and tax evasion is really significant";
(4) "Peter Schiff located the bank he co-owns Euro Pacific in Puerto Rico partly because he knew it offered the kind of secrecy his clients wanted";
(5) "I don't think [they, Mr Schiff and Mr Anderson] would have any qualms about ah you know dealing with, with criminals or money launderers in general or tax dodgers. Um yeah they have no scruples"; and
(6) "but the bank trades on your name. The bank uses you…as its key piece of marketing though so therefore you have a responsibility don't you? When the, if the bank goes south it's on you", "I'm putting to you that your bank has accounts for organised crime figures", "well Peter why is it the tax authorities in Australia, the United Kingdom, Canada, America and the Netherlands all believe your bank is facilitating tax evasion and serious organised crime?", "can you confirm that that target was suspected to be facilitating international money laundering?", "is it safe to say the criminality, the alleged money laundering, the alleged tax evasion had to be in your mind of such a level to warrant that extraordinary action?".
84 I consider that the broadcast conveys to the ordinary, reasonable viewer that Mr Schiff, through his bank Euro Pacific, poses a grave organised crime threat to Australia. This is because the imputation is that Mr Schiff poses a threat of this kind, not that Mr Schiff is himself involved in organised crime. The broadcast conveys imputation 8.11 because it conveys that Mr Schiff founded, runs and is responsible for Euro Pacific bank which itself poses a grave organised crime threat to Australia. The ordinary, reasonable viewer would understand that the broadcast is implying that it is Mr Schiff who is responsible for Euro Pacific bank posing this threat. They would understand the implication that it is Mr Schiff, not the otherwise mindless corporation he controls, that is posing this threat. They would not give any prominence or significance to the word "suspect" in the statement that "Australian authorities were so concerned about Euro Pacific they designated it an Australian priority organisation target. This means Australian police suspect Euro Pacific poses a grave organised crime threat to the nation that must be confronted at any cost". The surrounding context of the need to confront this grave threat at any cost would swamp the concepts of "target" and "suspect" as conveying a mere suspicion of a grave organised crime threat. The ordinary, reasonable viewer would be left in no doubt that through his bank Mr Schiff does pose a grave organised crime threat to Australia.
85 The ordinary, reasonable viewer also would not adopt a lawyer's approach to separate corporate identity, the corporate veil, or to the kind and degree of knowledge necessary for one person to be involved in the crime of another. The broadcast is conveying to the ordinary, reasonable viewer that, despite his protestations about not being involved in the daily operations of Euro Pacific bank, the bank operates as Mr Schiff intends and, in so doing, poses a grave organised crime threat to Australia. The broadcast thereby conveys, as discussed, that Mr Schiff, through his bank Euro Pacific, poses a grave organised crime threat to Australia.
86 Imputation 8.12 is that Schiff is such an unscrupulous individual that he has no qualms about doing business with criminals and money launderers. This imputation is conveyed by Mr Ogilvie's statement that "someone who would behave so unscrupulous [sic] I don't think would have any qualms about ah you know dealing with, with criminals or money launderers in general or tax dodgers. Um yeah they have no scruples" given the context of this statement. The context includes:
(1) the journalist saying Mr Ogilvie was tracked down to "find out what really happens inside the bank" - thereby presenting Mr Ogilvie as an authentic and reliable source of information about Euro Pacific bank;
(2) Mr Ogilvie being described as Euro Pacific bank's IT manager in 2014 - thereby presenting Mr Ogilvie as having inside knowledge that can be trusted;
(3) Mr Ogilvie clarifying that the "someone" "who would behave so unscrupulous [sic] I don't think would have any qualms about ah you know dealing with, with criminals or money launderers in general or tax dodgers" is the "they" that have no scruples (clearly being Mr Anderson and Mr Schiff);
(4) the journalist saying Mr Ogilvie worked very closely with Mr Anderson, a former bankrupt which "probably explains why the bank's other owner Peter Schiff, is the public face of Euro Pacific"; and
(5) Mr Ogilvie not being surprised by the fact that Euro Pacific bank was now at the centre of an international tax evasion probe because "these are unscrupulous people. These guys could shut down the bank tomorrow, transfer it to wherever they want and you'll never see 'em again". Again, "these guys" are obviously Mr Schiff and Mr Anderson.
87 Given the context of the broadcast as whole, the broadcast conveys not merely that Mr Ogilvie thinks Mr Schiff and Mr Anderson are both so unscrupulous that they have no qualms about dealing with criminals or money launderers in general or tax dodgers, but that Mr Ogilvie is right - they are both so unscrupulous that they have no qualms about dealing with criminals or money launderers in general or tax dodgers.
88 The respondents' submission that the ordinary, reasonable viewer is "well sensitised to the administration of justice process and know that such allegations concern competing and untested allegations", so that "a media report arising from civil proceedings to the effect that a person has been accused of certain conduct has been held to be incapable of conveying an imputation that that person is "guilty" of that conduct" (citing Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 and Cummings) does not engage with the true context and content of this broadcast. Each case will depend on its own facts. In Cummings, the publication concerned a "fight", or a "stoush", in the NSW Supreme Court about racehorses. It was obvious the publication was conveying that there were disputed claims and counter claims: [140]. There was no embellishment and the publication made clear that the allegations were yet to be determined by a trial: [141]. These facts led to the conclusion that the ordinary reasonable reader, who is "well sensitised to the legal process of making allegations which lead to judicial resolution" (at [139]), would not read the matters complained of as conveying guilt imputations: [141].
89 In contrast, this broadcast, as a whole, is a sophisticated piece of high drama. By all of the methods identified and the content and context of the broadcast as a whole, it does not present to the ordinary, reasonable viewer, no matter how sensitised to court cases, a mere investigation or mere allegations or mere suspicions. The broadcast bears no resemblance to such a straightforward piece of reporting in print as considered in Cummings.
90 The respondents' proposition that the alleged imputations would only be conveyed to a perverse person, engaging in wild speculation or unreasonable inferences does not confront the nature, context or content of the broadcast. The broadcast is not saying there is mere smoke about Mr Schiff's founding, running and responsibility for the bank, it is saying that there is smoke coming from a fire and that those responsible are about to be caught. The central criticism is directed at Mr Schiff's actions in founding and running a bank intended to enable and in fact enabling tax evasion. Given the broadcast, the supposed "elision" between the bank and Mr Schiff which the respondents criticise is demanded by the nature, context and content of the broadcast.
91 I agree that the viewer "would not go backwards and forwards, parsing a word here and a sentence there". They would view the broadcast as whole. But the meaning being conveyed to them as a whole is not just about (or even mostly about) the bank as some kind of independent actor - the broadcast is about Mr Schiff intentionally enabling the use of the bank to facilitate tax fraud by others. Why would he do so? The broadcast provides the answer at the outset - because he is a person who likes to fly outside the rules (the "a little" at the end of that quote as it appears later is omitted the first time Mr Schiff is introduced) and "when it comes to contempt for paying income tax…there's no greater hater than Peter Schiff".
92 Contrary to the respondents' submissions:
(1) Mr Schiff is the obvious focus of the broadcast irrespective of the actual time he is shown on screen;
(2) Mr Schiff is not just introduced as someone who has controversial views about the economy and taxation, and as the co-owner - and public face - of a bank in the Caribbean which is alleged to be at the centre of an unprecedented worldwide tax evasion investigation. Mr Schiff is introduced as the person whose own bank is in fact at the centre of the biggest tax evasion investigation in the world. He is described at the outset as a character who "likes to fly outside the rules" with a public opposition to the payment of tax. He is immediately associated with a notorious crime figure who got through the front door of his bank. He is almost immediately presented as a person who will not answer questions;
(3) it is not just that "Euro Pacific's compliance culture is called into question by the program" and this is not the "central allegation against Euro Pacific". The reference to the bank "waiving customers through without actually really considering the risk that those customers were going to be placing proceeds of crime in the accounts that they were opening" is one small part of the program. The central allegation is against Mr Schiff because it is "his" bank, he set it up in a location to provide secrecy to his bank's customers, they want secrecy because they are illegal tax evaders, he intended his bank to be used by illegal tax evaders, and people are using his bank for illegal tax evasion for which he is responsible;
(4) other than the imputations I have rejected above, it is not to the point that the broadcast does not identify that Mr Schiff "had knowledge of any particular people or transactions, or had any involvement in those transactions". The ordinary, reasonable viewer does not draw the kind of fine distinctions a lawyer might between the types of knowledge that might fix a person with legal responsibility for conduct. The broadcast does identify that Mr Schiff founded and runs his bank intending to facilitate tax evaders to hide their money from tax authorities; and
(5) the idea that the ordinary, reasonable viewer would not ignore Mr Schiff's "robust and compelling denial of [the] proposition" that the whole point of an Australian setting up an offshore account with Euro Pacific was to avoid or minimise their tax obligations is implausible. There is no suggestion in the broadcast that Mr Schiff's denials were robust or plausible in any way. Mr Schiff is presented as a person who avoids hard questions. He is a person with "contempt for paying income tax". There is "no greater hater" of paying tax than Mr Schiff. He is the man at the end of the money trail and the centre of it all. His is the name that keeps coming up in investigations. The investigations showed he was operating in a manner intended to attract customers looking to evade tax or perhaps launder money. In this context, for the respondents to propose that the ordinary, reasonable viewer would take seriously Mr Schiff's denials is far-fetched. The journalist obviously did not believe Mr Schiff, as apparent from his pointed comments such as:
(a) "well I'm asking [you] you're the expert. Isn't that a reason why many people use these banks…---to avoid paying taxes?";
(b) Mr Schiff "only likes answering positive questions about the bank";
(c) "is this banker …feeling the heat";
(d) "shouldn't the question be for you?";
(e) "I'm asking you. You run the bank. It's your bank";
(f) "well you do know the IRS visited you this year, surely that was an indicator";
(g) "Peter Schiff is rarely lost for answers"; and
(h) "he leaves the final word to his wife".
93 The message is clear - Mr Schiff is not to be believed.
94 The observation in Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 at 580 to which the respondents refer is of no assistance to them. In Chakravarti at 579-580 the point being made is that:
An overly rigid rule, strictly confining a plaintiff to the pleaded imputations, would run the risk that the alleged wrong was forgotten or overlooked [citation omitted]. Instead of measuring the damage done by the publication itself, the trial might be diverted to a different document, namely the pleading containing the imputations formulated by lawyers.
95 No doubt also that a more serious imputation may include a less serious imputation, but that does not mean the more serious imputation is not in fact conveyed.
96 Contrary to the respondents' submissions, it is easy to "resist a conclusion that the Applicant's claim in defamation therefore constitutes an attempt to circumvent" s 9 of the Defamation Act and the fact that if the bank had sued in injurious falsehood, it would have borne the onus of proving that the representations were false. Had the broadcast been just about the bank, Mr Schiff's position would have been different. But this broadcast is about Mr Schiff and his vehicle, the bank, to achieve his end of facilitating tax evasion.
97 Triguboff at [79] also does not assist the respondents, as the point Bromwich J makes is that "if a publication is not just about such a company, but also about a natural person, the natural person may still sue". This is the present case.
98 Mr Schiff is not pleading "meanings relating to the bank's conduct in facilitating tax evasion and money laundering as if they are "about" him". The meanings are about him and his founding and use of the bank to achieve his ends.
99 The submission that the "meanings contended for are indeed perverse since, in the Broadcast itself, the Applicant plainly understood that the allegations being put to him were about Euro Pacific" so that such meanings being about Mr Schiff "could only have been conveyed to a prejudiced, utterly unreasonable viewer not-well sensitised to the adversarial nature of the investigation being discussed" is untenable. The bank is consistently identified as Mr Schiff's bank for which he is responsible (for example, "I'm asking you. You run the bank. It's your bank"). Mr Schiff's references to allegations about "my bank" do not mean he understood that the allegations did not relate to his conduct, which explains his statement that "to say that oh I'm facilitating tax evasion. Why? I haven't benefitted one nickel".
100 The investigation was also not presented as an unfinished contest of an adversarial nature. While the investigation may not yet have established the Australians who had used the bank to stash their dirty money or evade paying tax, the broadcast presented the investigation as having already identified the person at the centre of Australians and others in fact having used the bank to stash their dirty money and to evade paying tax - Mr Schiff ("the money trail… leads to the man at the centre of it all. The face of the bank. Peter Schiff"; "it was fairly apparent that Peter Schiff was operating in a manner that was intended to attract customers who were looking to either evade tax or perhaps launder money"; "Peter Schiff located the bank he co-owns Euro Pacific in Puerto Rico partly because he knew it offered the kind of secrecy his clients wanted").
101 The ordinary, reasonable viewer would not just understand that Mr Schiff encouraged tax evaders and criminals to use the Euro Pacific bank through his marketing of the bank. They would understand that he had intended his bank to be used by tax evaders and had knowingly facilitated such use to occur. The ordinary, reasonable viewer would not just understand that Mr Schiff had been reckless or wilfully blind as to whether such unscrupulous persons were attracted to the bank. Nor would they merely have understood, at worst, the broadcast to be casting suspicion about Mr Schiff's "involvement in the bank's apparently nefarious conduct (i.e., a Chase level 2 meaning)". This is a reference to Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2002] All ER (D) 20 and a taxonomy of imputations from actual guilt (level 1), reasonable grounds to suspect (level 2), and investigation (level 3).
102 Conveying that Mr Schiff founded and runs a bank intending it to be used by illegal tax evaders and where it had been so used (as the broadcast does) is not about Mr Schiff being wilfully blind or reckless or being suspected to be involved in the bank's nefarious activities. It is Mr Schiff's own nefarious activity in which he has in fact engaged. The broadcast presents as a fact that "the money trail shows us the secret tactics used by super wealthy Australians to dodge tax" and that trail leads to Mr Schiff. There are in fact "wealthy crooks who avoid paying their share of tax by setting up accounts with offshore banks like Euro Pacific". It was also "fairly apparent that Peter Schiff was operating in a manner that was intended to attract customers who were looking to either evade tax or perhaps launder money". "Peter Schiff located the bank he co-owns Euro Pacific in Puerto Rico partly because he knew it offered the kind of secrecy his clients wanted". His bank in fact "has accounts for organised crime figures". He runs the bank. The meaning of the broadcast would not be taken by the ordinary, reasonable viewer to involve Mr Schiff being merely wilfully blind or reckless or being suspected to be involved in the bank's nefarious activities.
103 For these reasons, I am satisfied that imputations 8.1, 8.2, 8.3, 8.4, 8.5, 8.11, and 8.12 are conveyed by the broadcast. Those imputations are each defamatory. The respondents accept this, if the imputations are conveyed.
104 The respondents' proposed imputations, as I understand it from the respondents' submissions at least, is that in respect of the broadcast, the first alternative relates only to imputation 8.4 and the second alternative relates only to imputations 8.9 and 8.10. I have concluded that imputation 8.4 is conveyed, but imputations 8.9 and 8.10 are not conveyed.
105 I do not consider that any answer I might give to the separate questions dealing with the respondents' alternative meanings operates to preclude the respondents from making any argument that might later be fairly made. One reason for this is that the separate questions (correctly) compare the respondents' alternative meanings to all of the imputations alleged in respect of the broadcast whereas the respondents' submissions deal only with imputation 8.4. But an imputation by imputation comparison would be misconceived.
106 What I can say now (for what it is worth) is that I do not accept that the respondents' first alternative is no different in substance from imputation 8.4. It is different in substance because:
(1) in imputation 8.4, Mr Schiff knowingly facilitates tax fraud, whereas in the respondents' first alternative he merely knowingly provides a vehicle for customers to commit tax fraud, and hide and launder the proceeds of crime. The ordinary, reasonable viewer would not understand these to be the same in substance. In the former, Mr Schiff's knowledge is of the facilitation of tax fraud, and in the latter his knowledge is of the bank being a vehicle for customers' tax fraud;
(2) in imputation 8.4, Mr Schiff has in fact knowingly facilitated tax fraud whereas in the respondents' first alternative he has merely knowingly provided a vehicle for customers to commit tax fraud which they may or may not have in fact committed; and
(3) imputation 8.4 does not deal with money laundering whereas the respondents' first alternative deals with money laundering.
107 The evidence needed to establish the substantial truth of imputation 8.4 and the respondents' first alternative would be different. Contrary to the respondents' submissions, imputation 8.4 requires proof of tax fraud by customers of the bank, or else Mr Schiff could not knowingly facilitate tax fraud. The latter requires proof that by Mr Schiff establishing and operating the bank, he knowingly provided a vehicle for customers to commit tax fraud, and hide and launder the proceeds of crime. It does not matter if any such customer has or has not committed tax fraud, and hidden and laundered the proceeds of crime. What matters is if Mr Schiff's knowing provision of the bank as a vehicle enabled that to occur.
108 I am also not persuaded that the respondents' first alternative is conveyed by the broadcast in addition to imputation 8.4 in the sense required by s 26 of the Defamation Act as a contextual imputation. This is because (leaving aside the money laundering issue) the respondents' first alternative is simply a lesser version of imputation 8.4. It is subsumed into imputation 8.4. As such, if the respondents' first alternative is conveyed by the broadcast (which I would accept it is) and is substantially true, then it could not be said that the "defamatory publication was true enough that no further harm to reputation was done by the particular imputations selected by the plaintiff": McMahon at [19]. Further harm to reputation would be done by imputation 8.4 as it is more serious than the respondents' first alternative.
109 On my conclusions, the respondents' second alternative (Schiff, through the bank Euro Pacific, knowingly assisted tax cheats and criminals in their criminals endeavours by providing customers with secret bank accounts) involves a mere hypothetical. If I am wrong, again, however, I would say that the respondents' second alternative is substantially different from imputations 8.9 and 8.10 because "convicted criminals and organised crime figures" are not the same as "tax cheats and criminals" and knowing assistance to hide the proceeds of crime or to launder the proceeds of crime is not the same as knowing assistance by providing customers with secret bank accounts. Again also, the respondents' second alternative is a lesser version of, and thereby subsumed into, imputations 8.9 and 8.10.