Consideration
77 The publication is not a sober analysis of the material upon which it reports. Rather, it is a classic example of tabloid journalism. It sensationalises the information. It is also voyeuristic. It encourages readers with a prurient interest in other people's affairs, particularly "underworld figures" and so-called celebrities, to nourish that interest. As Mr Smark put it in his opening remarks:
It's a matter which is imbued with both visually and in content the creating of a certain mystique, an underworld, an area of great interest and yet which is secret.
78 Furthermore, the publication is littered with references to popular culture, which arguably signalled to the reader's imagination.
79 A publication of this nature is likely to foster a degree of loose thinking. And "loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded": Lewis v Daily Telegraph Ltd [1964] AC 234 at 285 (Lord Devlin).
80 While the ordinary reasonable reader reads between the lines, however, he or she does not go searching for sinister meanings. Yet that is what Mr Taylor's case effectively invites. It must be remembered, as Wigney J put it in Rush at [75], that the ordinary, reasonable reader is taken to be fair-minded and not suspicious of mind or avid for scandal.
81 The portrait of Mr Taylor is certainly unflattering. It does not paint him in a favourable light. And it is understandable that he would be unhappy about it. But the impression of him it creates is not that of a mafia figure, mobster or criminal engaged in organised crime. Rather, Mr Taylor comes across as Mr Hills described him, namely as a petulant young man with a sense of entitlement, who has a complicated and at times turbulent relationship with his father, a foul mouth, a fondness for wisecracks and a predilection for making jokes in poor taste. It is true that the publication discloses that he is close to his uncle, Michael, who is a notorious criminal, and that he was in contact with a prisoner with whom he was apparently on friendly terms. But Mr Taylor does not complain that the publication conveys the imputation that he is an associate of criminals. The pleaded imputations are materially different.
82 Mr Taylor submitted that the publication depicts the Ibrahim family as an organisation involved in nefarious activities, including serious crime. He contended that there are frequent references to "Mafia lore and the language of organised crime". He pointed to the following matters:
Michael Ibrahim is said to be "[v]ery well connected in [the] underworld" (p 2) and on the same page Mr Taylor, himself, is described as a "wiseguy", "which the ordinary reasonable reader would recognise as a term for a member of the Mafia, used in well-known films such as Goodfellas".
The article on pages 22-23 about the police raid on John Ibrahim's Dover Heights house which describes some of his possessions, singling out for special mention "a manuscript for the classic Al Pacino movie, Scarface" and the observation that "[a]bove a book about the Mafia on the shelf is what appears to be a violin case". The specific mention of the violin case was said to "plainly…evoke the classic image of the Prohibition-era American mobster carrying a Tommy gun concealed in a violin case".
"Operation payback", the article on pp 14-15 discussing the "punishment" meted out to Mr Watsford and Mr Chester, which Mr Taylor submitted was likened to a "kneecapping" (but which was in fact said to be "a step away from [such] traditional Kings Cross-style punishments like a kneecapping").
The article on pp 18-19 in which Det Murphy is compared to the well-known American detective, Eliot Ness ("Think a Bondi version of Eliot Ness, the smartly dressed 1920s American Prohibition agent [who] took down Al Capone as a member of the squad known as The Untouchables before Kevin Costner immortalised him in the 1987 movie of the same name"). To emphasise the comparison, Mr Taylor noted that the article features an image of the actor, apparently a still from the film.
The article on pp 20-21, entitled "The Outer Circle", which referred to the sexual proclivities of a so-called Ibrahim associate, likening him to New Jersey mobster John D'Amato, who "was murdered after it emerged he was secretly gay". Mr Taylor pointed to the reference in the article to Michael Ibrahim counselling this individual as one of the responsibilities he was "forced to carry thanks to his apex position in the criminal world".
83 Mr Taylor submitted that this is "the milieu" in which he was identified. He contended that the references to Eliot Ness, Al Capone, The Untouchables, John D'Amato, The Sopranos, Scarface and the violin case are quite gratuitous and could only have been made in order to liken the Ibrahim family to the American mob.
84 There is force in many of these submissions.
85 I accept the submission that the Ibrahim family is depicted as an organisation involved in nefarious activities, including serious crime. The inclusion of the gratuitous references mentioned above does suggest that "the Ibrahim clan" (the expression used on pp 2, 3, 4, 7, 17, 18, 19, and 20) or the "Ibrahim family" (the term used on pp 1, 2, 3, 5, 6, 8, 10, 13, 14, 15, 16, 17, 22, and 23) operates like the American mob. Moreover, I am acutely aware that one can be damned by association.
86 But the question here is not whether the publication has the effect of diminishing Mr Taylor's reputation because he is a member of the Ibrahim family but whether, because of that and the other matters upon which he relied, the publication implies that he, too, is a mobster, a member of the mafia, and/or a criminal involved in organised crime. Mr Smark argued that this was the effect of Mr Taylor's inclusion as a "key player" in the montage on p 2. But the ordinary reasonably reader, having read the whole of the article, would recognise that the members of the Ibrahim family who are listed there are not all key figures in a criminal network. Read in context, "the key players" are those individuals who feature in the recorded conversations and the police officers who were involved in the investigation which led to the arrest of some of them.
87 The fact that another (or other) members of his family are or may be involved in organised crime does not mean that Mr Taylor is too. And I am not persuaded that the matter complained of suggests that he is. The ordinary reasonable reader would know that you cannot choose your relatives.
88 Neither the reports of the conversations with the prisoner (Hadid) nor those with his uncle Michael imply that he (Taylor) is involved in organised crime, even though it is a fair inference that his uncle was.
89 Unlike other members of the Ibrahim family, Mr Taylor is not said to be "awash with cash". He is not said to have any of the trappings of wealth. Nor is he said to enjoy a life of luxury. If anything, the opposite is true. The publication implies that he lacked the resources to raise bail, that his Ibrahim family did not come to his aid, and that he relied on his struggling mother to help him out. It records that he was living in a flat owned by his father who was chasing him for rent. The report of the police raid on the homes of Ibrahim family members relates to searches of the homes of John, Fadi, Michael and their mother. It does not insinuate that any of the items mentioned in the article belonged to Mr Taylor. While the publication mentions that the police entered the apartment in which he was living to arrest him, it does not refer to a search of the apartment. Mr Taylor did not submit that the publication inferred that he procured Ms Lee to administer the punishment to Mr Watsford and Mr Chester and the article does not indicate that he was present when the punishment was administered. In all the references in the publication to the involvement of other members of the Ibrahim family in criminal conduct and the actions of police and law enforcement agencies, there is no suggestion that Mr Taylor was also involved apart from the three references to his arrest over his handling of the suitcase, all of which were accompanied by statements that he had been "cleared" of involvement or, in one instance, that he had "beat" the charges.
90 Mr Smark pointed to the disclaimer given in relation to each of Shayda Ibrahim, Mim Salvato, Margaret Staltaro, and John Ibrahim that they had not been charged and there was "no suggestion" that they had participated in criminal activity. He argued that the omission of a disclaimer in the same terms in relation to Mr Taylor would suggest to the ordinary reasonable reader that, despite having been cleared by the legal system, Mr Taylor was nonetheless involved in criminal activity. He contended that undue prominence was given to the statement that Mr Taylor had been arrested for "holding a suitcase containing more than $2 million in cash", and that the subsequent disclaimer that he had been cleared did not neutralise this imputation. He referred to the remarks made in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 79 ALJR 1716; 221 ALR 186 at [8].
91 These remarks do not assist Mr Taylor.
92 In Favell, the question before the High Court was not whether the article in question did convey the pleaded imputations but whether it was capable of doing so. The context was an application by the respondents for orders that the pleaded imputations be struck out and that summary judgment be entered in their favour. At first instance an order was made striking out the imputations and an appeal from that order was dismissed. The High Court, however, held that the article was capable of conveying the pleaded imputations (at [18] per Gleeson CJ, McHugh, Gummow and Heydon JJ).
93 The impugned article reported on a fire that destroyed a riverside mansion which was subject to a controversial development application. The passage upon which Mr Taylor relied appears in the joint judgment. It reads as follows (the emphasis in the quotation below is mine):
[T]he article does not simply report the fire without comment. On the contrary, the main thrust of the article is to link the fire with the contentious development proposal. What could have been the relevance of the development proposal to the story about the fire? The development proposal was not just an interesting background fact. The headline makes clear the point of the story: "Development site destroyed". The first paragraph repeats that emphasis. The article does not simply give an account of the fire "without comment". And if, by "the circumstances surrounding" the fire, Helman J had in mind the development proposal and the surrounding controversy in the neighbourhood, an ordinary reasonable reader might well ask why that was given such prominence. If the fact of the fire and the fact of the controversial development proposal were merely coincidental, and not causally related, then no inference of wrongdoing would follow. Newspapers can, and do, report coincidences. On the other hand, if the two were not just coincidental, but there was a connection, there was at least a possible inference that the connection was sinister.
94 It is rare at "the capacity stage" to conclude that the antidote of the matter complained of removes its bane: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [144] (McColl JA, Bathurst CJ and Gleeson JA agreeing at [1] and [191] respectively). At that stage, a court is required to have regard to "'all such insinuations and innuendoes' as could reasonably be read into the words published by the ordinary reader": Molan v Fairfax Media Publications Pty Ltd [2017] NSWSC 800 at [14] (McCallum J). But we are not at the capacity stage here. The inquiry at this point is a very different one. As I have already observed, the question here is not whether the publication is capable of conveying any of the imputations but whether I, as the putative ordinary reasonable reader, am persuaded on the balance of probabilities that it does. The fact that an ordinary reasonable reader might come to a particular conclusion does not necessarily mean that he or she would or, for that matter, should.
95 In any event, the publication in Favell did not apparently include a statement which could have rebutted the available defamatory inference.
96 In the present case, I am not satisfied that the ordinary reasonable reader of the publication would come to the conclusion that Mr Taylor was a criminal involved in organised crime or if, contrary to my opinion there is a substantial difference between the three pleaded imputations, a gangster or a member of the mafia. While Mr Smark argued otherwise, I consider that, if such an impression might have been given by the report of the arrest and the charge, it is dispelled by the statements that accompany the report on the three occasions it appears. In other words, the antidote overcame the bane. The disclaimer recorded for Shayda Ibrahim and others was inapt in Mr Taylor's case because, unlike them, he had been suspected of involvement in a criminal enterprise and he had been charged. The ordinary reasonable reader would recognise that. The ordinary reasonable reader would not conclude that, despite having been cleared of handling (or holding) the suitcase full of cash and "any involvement in the tobacco importation ring that snared his uncle Michael", Mr Taylor was nonetheless guilty or involved. The publication does not insinuate that, despite the outcome of the committal proceeding, the reality was otherwise. Nor does the publication insinuate that Mr Taylor was involved in any other organised crime. I appreciate, of course that the reader is entitled to give some parts of the article more weight than other parts. But I am not persuaded that the publication gave such prominence to the reason Mr Taylor was arrested that the accompanying statement concerning the outcome of the committal would not have removed any impression to the contrary that might have arisen from the report of his arrest and the mention of the charge.
97 In advocating for a different conclusion, Mr Smark argued:
But it doesn't cancel out. I mean, to use an extreme example, and I'm not suggesting this is that, but a person is not placed in the same position - this is the standard illustration of how bane and antidote is limited, by having an allegation of an invidious crime, like paedophilia, made against him or her and then having it published that the claim has been dropped. The person is still, in terms of what else might be believed about that person, significantly differently situated then as if the material had never been advanced.
And in the context of this matter, this is exactly it. Two million dollars in a suitcase. I mean, most people perhaps would be thinking, well, can you fit $2 million in a suitcase? It's a very striking proposition. And the article doesn't go on to say he didn't, in fact, have $2 million in a suitcase. It simply says he was cleared of charges associated with that. Who has $2 million in a suitcase? It's a remarkable proposition. It's not suggested it was a case of mistaken identity or something of that kind.
98 I am not persuaded by this argument either. The ordinary reasonable reader considers the publication as a whole, the words alleged to be defamatory and their context, and "tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning": John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; 77 ALJR 1657; 201 ALR 77 at [26] (Gleeson CJ). While the reference to the suitcase is striking (at least at first) when the publication as a whole is considered and the reference is read in that context, it does not overwhelm or otherwise defeat the effect of the statements that Mr Taylor was cleared. It is a long established principle that, if something disreputable is said of a person in one part of a publication but it is removed by the conclusion, "the bane and the antidote must be taken together": Chalmers v Payne (1835) 2 Cr M & R 56 at 159.
99 The statements in the publication regarding the circumstances of Mr Taylor's arrest and the reason he was charged are isolated and nothing is made of them. Importantly, none of the articles in which Mr Taylor is mentioned depicts him as a gangster, a mafia figure or a criminal involved in organised crime. Nor does the publication as a whole - whatever might be said or implied about other members of the Ibrahim family. It is true, as Mr Smark submitted, that the publication does not go so far as to state that Mr Taylor was unaware of the contents of the suitcase or that this was a case of mistaken identity. But in the face of the statements that he was cleared of involvement in the criminal enterprise, the ordinary reasonable reader would not jump to so scandalous a conclusion that he was nonetheless a criminal involved in organised crime, a gangster or a member of the mafia. After all, the article offers no reason to think that Mr Taylor had any knowledge of the contents of the suitcase and is silent about the circumstances in which he came into possession of it.
100 I reject the submission that the reference to Mr Taylor as John Ibrahim's "wiseguy" son implies that he is a member of the Mafia or a mobster, as Mr Smark contended. Wiseguy (whether written as one word or two) is a colloquial term originating in the United States. The meaning Mr Taylor sought to give it is not universally accepted, certainly not in Australia. I, myself, was unaware of it before reading the submissions in this case. The Macquarie Dictionary does not indicate that it is an accepted meaning in Australian English. It defines the term, whether written as one word or two, to mean "a cocksure or impertinent person of either sex" (accessed 3 February 2022). That definition accords with the definition in the Oxford English Dictionary which is "an experienced or knowledgeable man; usually ironic or [derogatory]; a know-all, a wiseacre; someone who makes sarcastic or annoying remarks …" (accessed 3 February 2022). These definitions perfectly fit the portrayal of Mr Taylor in the matter complained of. Despite the references in the publication to gangsters and the mafia, I do not think that the ordinary reasonable reader of the publication would take the term "wiseguy" when used in connection with Mr Taylor to mean that Mr Taylor is a mobster or a member of the mafia. And Mr Taylor did not plead that the term has a special meaning conveyed to readers with knowledge of some extrinsic facts, such as the use of the term in Goodfellas.
101 Even if wiseguy could have such a meaning, in the context in which it is used to describe Mr Taylor, the ordinary reasonable reader would not interpret it this way. None of the othermembers of the Ibrahim family or their hangers-on were so described. It is obvious that the term was suggested by the text message sent to Mr Taylor by his father ("[a]ll you're good for is a smart-arse comment") reported on p 9. To paraphrase the respondents' submission, the ordinary reasonable reader would understand it to be a reference to a person who makes "smart-arse comments" - a smart aleck, not a criminal. The "father versus son" article on pp 8-9 is replete with examples, such as Mr Taylor telling his father "the cheque's in the mail" when he was chasing him for rent money; joking to his aunt (Michael's wife), in reference to his uncles' arrest in Dubai, that "at least Mick will lose some weight"; commenting that a photograph of his father on the balcony of his home reading his autobiography was "like getting caught having a wank to your own photo"; and telling his father that his autobiography would be a top seller in "Caltex", this latter remark generating the text message referred to above.
102 I emphatically reject the submission that the report suggests that Mr Taylor was a prominent underworld figure. The submission was put this way:
On page 8, Taylor is described as being particularly close to Michael Ibrahim, whom the report describes as "Very well connected in the underworld" and holding an "apex position in the criminal world", and as "trying to challenge his father's alpha dog status". All of this suggests that Taylor was prominent within that milieu, and that he was ambitious to rise higher.
103 This is a bridge too far. In no way does the publication suggest that Mr Taylor was a prominent figure in the "underworld" or the "criminal world". Nor does it suggest that he had any aspirations to become part of it, let alone rise up in it. The submission takes the reference to the challenge to his father's "alpha dog status" completely out of context.