• Any

EXPLANATORY STATEMENT

It is the practice of this Court in matters which are of significant publicinterest to make a brief explanatory statement whendelivering judgment.

The statement I now make is a short overview of some of the main issues and thefindings I have made but it does not purport tocomprehensively set out myreasons and findings which are contained in the judgment. The judgmentconcerns only the question ofliability. The question of damages has beenseparated out and will be considered at a further hearing.

Precise details as to the form of appropriate Orders to be made will need to bethe subject of further submissions.

THE BACKGROUND

The House of Versace is a famous Milanese fashion house. The principal Versacecompany and two members of the Versace family, DonatellaVersace and SantoVersace have brought proceedings against both Frank Monte and his company,Arkitude Holdings Pty Limited, essentiallyclaiming they are guilty of falseand misleading conduct concerning them and also against Frank Monte for thepublication of seriousdefamatory imputations against them. The Versace claimwas that Frank Monte made false statements in claiming a commercialrelationshipwith the late Gianni Versace, who Frank Monte claimed had retainedhis services as a private investigator and adviser.

One central issue in the case was whether there was ever any conversation,meeting or relationship between Gianni Versace and FrankMonte in the periodfrom January 1996 up to the murder of Gianni Versace on 15 July 1997.

Frank Monte asserted that Gianni Versace confided in him during that eighteenmonth period with respect to the activities and affairsof the House of Versaceand the alleged activities of his brother and sister, Santo and Donatella. Thestatements alleged by FrankMonte to have been made by Gianni Versace aresensational and grave in nature. They concerned each of the three Versaceapplicantsand were said by Frank Monte to have been based on actualconversations with Gianni Versace. Often, the statements were cast inthe formof direct quotations.

The publication of these matters was in the form of a book published by FrankMonte and Arkitude entitledThe Spying Game,which was ghost written forFrank Monte to recount his life story. Additionally, some of the imputationsand representations havebeen extensively published in an article inTheWeekend Australiancolour magazinesupplement, of 23-24 June 2001and on the website maintained by Frank Monte and Arkitude, where a collectionof asserted rumours,gossip, sensational newspaper articles and statements weregathered and made available to the world at large. The website was heavilypromotional of the Frank Monte image as a colourful private investigator.

Frank Monte and Arkitude have denied the allegations made. However, noattempt was made by Frank Monte to rely on a defence of truthto any of thealleged defamatory imputations in these proceedings. In so far as themisleading and deceptive conduct claim is concerned,Frank Monte essentiallyrelied on denials and claimed he was an "information provider" and thereforehad protection as such underthe legislation in respect of the claims ofmisleading conduct. This defence is largely directed to media outlets but isnot confinedto such outlets.

In the defamation proceedings, Frank Monte raised a number of defences atcommon law and under statute. He claimed an honest beliefin the truth of thestatements concerning Santo and Donatella Versace derived from the allegedconversations with Gianni Versaceand denied that the alleged representationshad been made or that the statements would convey defamatory imputationsagainst Santoand Donatella Versace or the company. Part of his case was alsothat the statements did not specifically identify Santo and DonatellaVersacebecause they referred to the Versace business or the House of Versace, which hecontended included many other people.

The representations or statements and imputations against the Versace businessand Santo and Donatella Versace, on the evidencebefore me, are false andmisleading and constitute misleading and deceptive conduct. They aresufficiently specific when consideredin context, to identify the Versacecompany and the family.

I have found that each of Frank Monte's statements complained of lacks anycredibility whatsoever. In particular, I am persuadedthat he never had anyrelationship, contact or communication of any type with Gianni Versace and thathis assertions to the contraryare completely untrue. He is not within theprotection of the "information provider" defence in the legislation relating tomisleadingand deceptive conduct. Nor does he have any defence with respect tothe claim in defamation. I have found that he did not haveany honest beliefthat the imputations were true. His evidence is largely to the contrary anddoes not disclose any reasonable basisfor the assertions. The objective truthof the imputations was not asserted by Frank Monte and no attempt was made toestablishobjective truth of any of the statements apart from the claims ofconversations and meetings with Gianni Versace over the eighteenmonth period.Those latter assertions were untrue.

I am satisfied that damage has been suffered by each of the applicants as aconsequence of communication of the material and asa consequence of thedeceitful and defamatory course of conduct adopted by the respondents and thatunless they are restrained fromfurther publishing such false information, thedamaging statements will continue to be propagated. Although the book dealtwithother matters, the statements relating to Versace were central to the bookand constituted one of the main threads of the book. They were also central tothe article published inThe Weekend Australianand to publicationswhich were made available on the website at relevant times.

Injunctive relief should be granted to restrain further publication of thematters complained of. The precise form of this reliefwill need to besettled. The Versaces are entitled to appropriate declarations based on thefindings I have made. The matter willnow be stood over to resolve the preciseforms of relief at this stage and to consider the question of costs to date.Arrangementswill be made to schedule a hearing on the questions as to thenature and extent of damages claimed and to any defences in relationto theissue of damages.

I now publish my reasons. I adjourn the Court.

JUSTICE BRIAN J TAMBERLIN

8 March 2002

TRADE PRACTICES- whether representations in connection with supply orpromotion of supply of services - misleading and deceptive conduct - falseandmisleading representations - alleged conversations with deceased fashiondesigner - whether book, newspaper article and websiteare in "trade orcommerce" - whether applicant is an "information provider"- whetherdocuments fabricated- whether damage has been shown - nature of thedamage - whether injunctive relief should be granted - whether publications arepromotionalin character - whether respondents falsely representing thatapplicants agreed to acquire services - context of conduct complainedof

DEFAMATION- libel-whether judgment entered in firstproceedings - whether material relied on was speculative - whether proceedingswere an abuse ofprocess - effect of defamation claim on Trade Practices claims- whether imputations conveyed - whether question is capable ofconveying an imputation - whether defamation defences available-comment - qualified privilege - public interest - cause of action - honestbelief in imputations - malice

EVIDENCE - statements attributed to person since deceased - approachtaken by court

WORDS & PHRASES - "trade or commerce", "information provider","imputation"

Defamation Act 1974(NSW)ss 9,14,15,16,22,31,32, &33

Trade Practices Act 1974(Cth)ss 4,52,53, & 65A

Fair Trading Act 1987(NSW)ss 4,42,44, & 60

Statute Law (Miscellaneous Provisions) Act (No 2) 1984(Cth)

Law Reform (Miscellaneous Provisions) Act 1946(NSW)s 5

Clune v Collins Angus & Robertson Publishers Pty Ltd[1992] FCA 503;(1992) 25 IPR246 referred to

Jones v Dunkel[1959] HCA 8;(1959) 101 CLR 298 referred to

FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd[1992] FCA 219;(1992) 108 ALR479 followed

Farquhar v Bottom[1980] 2 NSWLR 380 cited

Typing Centre of NSW Pty Ltd v Northern Business College Ltd(1989) ATPR40-943 cited

RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd[1993] FCA 92;(1993) 41 FCR164 followed

Brown v Jam Factory Pty Ltd[1981] FCA 35;(1981) 53 FLR 340 referred to

Concrete Constructions (NSW) Pty Ltd v Nelson[1990] HCA 17;(1990) 169 CLR 594applied

Tobacco Institute of Australia Ltd v Woodward(1993) 32 NSWLR 559cited

Prestia v Aknar(1996) 40 NSWLR 165 cited

Fasold v Roberts(1997) 70 FCR 489 cited

Plimer v Roberts(1997) 80 FCR 303 cited

Fasold v Roberts(1997) 70 FCR 489 at 531 cited

Dataflow Computer Services Pty Ltd v Goodman[1999] FCA 1625;(1999) 46 IPR 393 cited

Firewatch Australia Pty Ltd v Country Fire Authority[1999] FCA 761;(1999) 93 FCR 520cited

Global Sportsman Pty Ltd v MirrorNewspapers Ltd[1984] FCA 180;(1984) 55 ALR25 referred to

Glorie v WA Chip & Pulp Co Pty Ltd[1981] FCA 224;(1981) 55 FLR 310 cited

Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd[1983] FCA 66;(1983) 47ALR 497cited

Lovatt v Consolidated Magazines Pty Ltd(1988) 12 IPR 261 discussed

Horwitz Grahame Books Pty Ltd v Performance Publications Pty Ltd(1987)ATPR 40-764 cited

Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd(1988) 77 ALR 615discussed

Sykes v Reserve Bank of Australia(1997) 151 ALR 579 followed

Krahe v Freeman(1988) ATPR 40-871 distinguished

Amalgamated Television Services Pty Ltd v Marsden[1998] NSWSC 4;(1998) 43 NSWLR 158followed

John Fairfax & Sons Ltd v Hook[1983] FCA 83;(1983) 72 FLR 190 cited

David Syme & Co v Canavan[1918] HCA 50;(1918) 25 CLR 234 referred to

Knupffer v London Express Newspaper Ltd[1944] UKHL 1;[1944] AC 116 distinguished

Truth (NZ) Ltd v Bowles[1966] NZLR 303 cited

Lewis v Daily Telegraph Ltd[1964] AC 234 cited

Gardiner v John Fairfax & Sons Pty Ltd[1942] NSWStRp 16;(1942) 42 SR (NSW) 171followed

Mirror Newspapers Ltd v World Hosts Pty Ltd[1979] HCA 3;(1979) 141 CLR 632followed

Morosi v Mirror Newspapers Ltd(1977) 2 NSWLR 749 cited

Morgan v John Fairfax & Sons Ltd (No 2)(1991) 23 NSWLR 374followed

Horrocks v Lowe[1975] AC 135 referred to

Green v Schneller[2000] NSWSC 548 followed

Bellino v Australian Broadcasting Corporation[1996] HCA 47;(1996) 185 CLR 183referred to

Harris v Perkins[2001] NSWSC 258 distinguished

Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45;(1981) 147 CLR 589discussed

Browne v Dunn (1893) 6 R 67 discussed

GIANNI VERSACE SpA, SANTO VERSACE, DONATELLA VERSACE v

FRANK MONTE aka FRANCOIS FERDINAND MONTENERI and ARKITUDE HOLDINGS PTYLIMITED

N 1184 of 2001

TAMBERLIN J

SYDNEY

8 MARCH 2002

THE COURT ORDERS THAT:

The applicants are directed to file and serve on the respondents withinfourteen (14) days draft Short Minutes of the Orders whichthey seek inaccordance with these reasons.

Note:Settlement and entry of orders is dealt with in Order 36 of the FederalCourt Rules.

1Gianni Versace ("Gianni") was a famous fashion designer who had a long andsuccessful career. He began his career as a designerin Tuscany in 1972.Accompanied by his brother, Santo Versace, ("Santo"), he moved to Milan in 1976and together they planned thecreation of the Gianni Versace fashion label,which was founded the following year. Gianni presented his first signaturecollectionin Milan in March 1978. In that year, Donatella Versace("Donatella"), the sister of Gianni and Santo, also began to take an activerole in the creative side of the business. Later, she was to manage theVersace brand.

2The Versace business has been carried out through a network of companies, theparent of which, Gianni Versace Srl, was subsequentlytransformed into GianniVersace SpA, a company owned by shareholders. The first applicant is now theholding company of the GianniVersace group of companies ("the group"). Thisorganisation has developed a network of independent franchisees which, duringthe1980's, began to open exclusive points of sale under the Gianni Versaceinsignia. At the end of the 1980's, the group took stepsto develop a networkof directly owned stores. In February 1988, the group brought back licensingrights to market and manufactureperfumes and cosmetics under the insignia.These were subsequently sold to a newly incorporated joint venture between thegroup andan Italian fragrance company.

3From the early 1980's, the group established operations in various fashioncentres throughout the world, largely in the form ofboutique stores inprestigious shopping areas. In 1993, the group diversified into the area ofhome accessories, including tablewareand bedware. During 1996 and 1997, thegroup continued to expand and set up a new flagship boutique on Fifth Avenue,Manhattan. In 1997, the group set up a German company to regain control of itsboutiques in Frankfurt and Hamburg, which had been previouslymanaged byindependent franchisees. Throughout these two decades, the group had relied onits recognition and repute in undertakingits expansion and achieving itssuccess. Much of that was attributable to Gianni, who had won numerous fashionawards throughouthis career. The collections presented by him both in men andwomen's high fashion achieved a high level of success and popularity. It wasclear from the evidence that by 1997, the group had become one of thepre-eminent international fashion houses. In somecircles, the Versace labelis a household name.

4Throughout 1996 and the first half of 1997, Gianni worked in Milan, New Yorkand Miami and travelled frequently in Europe andthe United States. On 15 July1997, while staying at his Miami villa, he was murdered in front of his home.The authorities concludedthat Gianni was murdered by a lone serial killerAndrew Cunanan, who killed himself as the police closed in on the house boat inwhich he was living. Cunanan died only eight days after the murder ofGianni.

5Since Gianni's death, Donatella has been responsible for the creative aspectsof the business. In 1996, the first applicant hadstarted preparing for apublic listing on the Milan stock market, originally scheduled to take place inSpring 1998. However, theoperation was postponed after Gianni's murder.

6Santo is currently the President and joint Chief Executive Officer of thefirst applicant. In his capacity as President, he managesthe business andfinancial affairs of the group. He has done so since 1978. In particular, heis responsible for overseeing themanufacturing, licensing, franchising, sales,distribution, administration, finance, and legal affairs within the group. Hewasthe first Chairman of the group and has been personally involved in thefinancial and operational side of the business since itsinception in 1977.

7Santo gave evidence that Gianni's focus in the business was almostexclusively on the creative and fashion side. He said thathe had a closerelationship with both Gianni and Donatella and that he talked to them on adaily basis about business, private andfamily matters. He said that he wasnever informed by his brother of any relationship or contact Gianni had with MrFrank Monte("Monte"). The first time Santo heard of Monte was when Monte wasquoted in a number of newspapers after Gianni's death statingthat Monte hadbeen instructed by Gianni in connection with a blackmail attempt in relation tocertain ledgers. Santo stated thathe knew nothing of Gianni having received ablackmail demand.

8Donatella worked with her brother Gianni, from 1978 until his death in 1997.In 1987 or thereabouts, she began managing the group'saccessories collectionsas well as some of the group's licences. She gave evidence that she had aclose relationship with both ofher brothers and spoke with them regularly inrelation to business, as well as family and private matters and that she workedextensivelywith Gianni in relation to the creation of collections and thepreparation of fashion parades, catalogues and fashion shoots. Vacationswerealso spent together. According to Donatella, this pattern of contact continuedduring the period from 1996 until the murderof Gianni in 1997. This is theperiod during which Monte claimed to have developed a relationship with Gianni.Donatella said thatwhile Gianni spent more time in Miami, he was always incontact with her and staff at the office. She had never heard of Monte untilhe was quoted in newspapers after Gianni's death in relation to suggestions ofa blackmail attempt. She was unaware of any contact,engagement or paymentfrom Gianni, the first applicant or any company in the group concerning Monte.She also denied an assertionby Monte that she had seen or recognised him at acommemoration function held for Gianni at the Metropolitan Museum of Art, on 4December 1997.

9According to the evidence of the first applicant's General Manager, GiovanniGalbiati ("Galbiati"), who is also a Director ofGianni Versace Spa, the grouphas grown to have an annual turnover worldwide of 865 billion Italian lire and,as at 31 December 2000,employed 1500 people globally on a full time basis.The group's strategy has been to globalise the Versace brand into onesignifyingquality and luxury. According to Galbiati, that image has beenachieved.

10The evidence, which I accept, is that the Versace brand is well known andestablished in Australia as a luxury, quality brandas a consequence of itswidespread promotion on a global scale and by the extensive marketing ofVersace brand products through exclusivedistributors and dedicated stores andother outlets. In 1998, the Versace group entered into a business partnershipin Australiawith Sunland Group Limited ("Sunland"), which has resulted in thePalazzo Versace Gold Coast Hotel in Queensland.

PARTIES

11The applicants have been described in the preceding pages.

12The first respondent, Frank Monte, who is also known as Francois (Franco)Ferdinand Monteneri, was a member of the New SouthWales Police Force for anumber of years in the 1960's. In 1967, he joined a private investigation firmand has carried on businessas a private investigator for over thirty years.Initially, his work mainly involved matrimonial cases. He said that his workasa private investigator has involved him working in various places throughoutthe world, including a period in the 1990's, where heworked in the UnitedStates. He claimed to have undertaken work for numerous internationalcelebrities and prominent organisationsand corporations, whose names werelisted on the website of Monte Investigation Services atwww.montespy.com.According to Monte's evidence, over the last ten years, he has eagerlysought and obtained extensive international exposure in themedia. He claimedthat in 1998, he became involved full time as an author and scriptwriter. Hereferred to three books, the titlesof which areThe Spying Game,Master SpyandConfessions of a Corporate Spy. Curiously, havingregard to these titles and the name of his website in his evidence, Monteexpressed a distaste for the expression"spying" because it denoted a "sinisterapproach".

13During 1996 and 1997, Monte resided in New York. During this period, he wasin a close personal and business relationship withJustine Wallace ("Wallace")who was called by the applicants in these proceedings. At the time of Gianni'smurder, Monte was stillrecuperating in New York from a cosmetic operation.

14On or shortly after the death of Gianni, Monte obtained internationalprominence by making statements and appearing in the Australianandinternational media, asserting claims that he had been retained by Gianniduring 1996 to take care of his personal and corporatesecurity and that he hadnumerous confidential conversations with Gianni as a result of which heobtained knowledge as to underlyingsuspicious circumstances that could haveled to Gianni's murder. In the immediate aftermath of the murder andfollowing, Monte claimedto have knowledge of involvement by the "Mafia" in themurder. These claims were widely reported in the international media,including,The Observer andThe Independentnewspapers in theUnited Kingdom and, in the United States, principally on television, but alsoin theNew York PostandNew York Observernewspapers.Defamation proceedings were instituted against those media outlets by theVersace family. In proceedings instituted in the UnitedKingdom, each caseresulted in an apology and retraction of the allegations concerning the firstapplicant and as against Santo andDonatella. Throughout this period followingGianni's death, Monte claimed to have obtained telephone records from a formerpersonalassistant to Gianni, Carlotta Corazza, to verify his association withthe designer. However, these were not produced to the Court. By late 1997,Monte was claiming to journalists to have a number of "Versace files", whichallegedly contained documents provingthat he had a working contract withGianni. He refused to provide any of these files to the Versace family orbusiness and claimedthat he had taken legal advice that he should not do so.Monte's allegations were provided to journalists employed by theNew YorkObserverand theNew York Postin early 1998 who subsequentlypublished Monte's claims. However, theNew York Postat least publisheda withdrawal and apology for its report shortly afterwards.

15In May 2000, Monte signed an agreement with Pan Macmillan Australia PtyLimited ("Pan Macmillan") for an autobiography giventhe working title ofFrank Monte Story. During the period stemming from 2000 to 2001, heworked with a number of ghost writers, including David Warner and DeborahAdelaide,to produce a book, ultimately entitledThe Spying Game, ("thebook") which is the subject of this action. The allegations in the book wereidentified in the pleadings as the "firstmatter complained of".

16The applicants claimed that Monte caused the book containing the falseallegations to be published in Australia. The Versacetheme is central to thebook. The book begins with Monte waiting near Central Park Children's Zoo inManhattan for an alleged meetingwith Gianni. A great deal of the book isconcerned with assertions relating to alleged statements by Gianni to Monte asto unlawfuland reprehensible conduct by Gianni, the Versace businesses and theVersace family. The applicants submitted that these assertionsare defamatoryand constituted false and deceptive conduct, based on fabrication and lies.

17The precise number of copies of the book published was not clarified to theCourt, but that is a matter which will no doubt beexamined in greater detailon any later hearing as to damages. The applicants indicated that thousands ofcopies of the book werereceived by Pan Macmillan from the printery. A numberof these were sent for review. A large proportion were said to have beendistributed to retailers, most of which were subsequently recalled. Monte'sevidence was that close to 800 copies were sold, inaddition to the copiesgiven out to the Press. I accept that at least the number of copies estimatedby Monte were published.

18Also the subject of this action is an article appearing in a publication inthe 23-24 June 2001 edition ofTheWeekend Australiannewspaper("the article"), in the form of an interview with Monte. The article includedsome condensed material from the bookand statements attributed to Monterelating to Gianni and the Versace family and businesses. This was referred toin the pleadingsas the "second matter complained of". The article wasthe centrepiece of the colour supplement entitledThe Australian Magazinewhich was circulated throughout Australia. The precise circulation was notin evidence but I am satisfied that it was published toa large section of theAustralian public. The cover of the supplement shows a photograph of Monte ina large black hat with a cartoonfigure of a somewhat vampish blonde with along cigarette holder. There is a full page colour photograph of Montelighting a largecigar. There are also photographs of Monte alongsidecelebrities, such as Donald Trump and Robert Kennedy Junior, and a photographof Monte and Justine Wallace with the title "frank monte private investigator".This article alerted the applicants to the fact thatMonte was continuing tomake representations and allegations about his claimed involvement with Gianni.The book was referred toand quoted by the author of the article. The articlestated:

"Then, out of the blue, came his ultimate client. Monte saysGianni Versace first contacted him in 1996. After several meetingshe earnedthe designer's trust enough to be told about a major problem. According toMonte, Versace said that someone called `Johnnythe Cat' from Milan had stolenfive secret ledgers from the company and was asking $US5 million to returnthem. Versace could notgo to the police because it would reveal that foryears, he had been dealing with the Italian underworld.

`It is explosive,' writes Monte. `Versace tells me that what the ledgersreveal is that over the course of several years he has beenlaundering millionsof `dirty' dollars for Calabrian organised crime.' The ledgers and therevelation about Gianni Versace were`a time bomb which could blow the House ofVersace and all its occupants sky-high.'"

(I interpolate here that this reference to "the House of Versace" was amisquote. In fact, the book referred to "a time bomb [whichcould] blowVersace's business and all its occupants sky high". For reasons givenbelow, this is a distinction without a difference).

"Monte says Versace was terrified that the Mob's links with his businessmight be revealed. At the same time, he says Versace frettedabout theworsening relationship with his family back in Italy. In 1996, Monte claimsthat Versace told him that his family wastrying to cut off his money in thebelief that he had AIDS.

Versace asked Monte to oversee an AIDS test for him. `He hands me threephials of blood marked A, B and C and asks me to take theseto a doctor, alongwith a payment of $20,000,' writes Monte. `Versace wants to know if he isHIV-positive.' It turns out that onephial contained the blood of a child, theother contained HIV-infected blood and the third was clear. Versace's bloodwas in thethird sample; he was clear.

Eventually, says Monte, Versace decided that his best option was to gopublic and tell people that criminals had infiltrated hisbusiness. Monteadvised Versace that if his intentions were to become known, his life would bein grave danger and that he neededto boost his personal security. However,Monte says, his advice was ignored. `The possibility that he might actually bekilled outrightdoesn't seem to occur to him,' writes Monte. `He feels safe inMiami.' Months later, with Monte in New York recovering from a facelift,Versace was shot dead.

Even though he was not Versace's bodyguard, did Monte feel guilty about hisinability to protect his client? On the contrary, heturned up on the NineNetwork'sA Current Affairand told Ray Martin that he felt `lucky',because he could easily have been killed alongside Versace - a comment thatcaused the Nineswitchboards to light up. Monte did throw himself intoinvestigating the death - a move that saw him appear on talk shows acrosstheUS.

As in the Rockefeller case, Monte has adopted a contrary view of Versace'sdeath. He does not believe the FBI's claim that he wasmurdered by gay serialkiller Andrew Cunanan - who committed suicide days later on a nearby houseboat.He believes Versace's familyor the Italian Mob may be among the suspects, butfor legal reasons he will go no further. `Do I know who killed Gianni Versace?No,' Monte writes. "I simply have my suspicions ... it was not AndrewCunanan.'"

19Set out below is a copy of the cover ofThe Weekend Australiansupplement for 23-24 June 2001 as described above.

Click here for Picture

20The publishers ofThe Weekend Australian have apologised in respectof the article and withdrawn the statements. Proceedings were institutedagainst Pan Macmillan by thepresent applicants in the Supreme Court of NewSouth Wales. It also apologised. The applicants have accepted a formal OfferofAmends made by Pan Macmillan under Division 8 of theDefamation Act 1974(NSW) ("theDefamation Act").

21Since 1997, the respondents have maintained a website with the domain namewww.montespy.com. This website contained material about Monte, including photographs, togetherwith a large number of newspaper articles concerningMonte and the applicants,including the Versace business. It included the article inThe WeekendAustralian, which was reproduced in full on the website. As at 29 July2001, the website domain name was registered in the name of "MonteInvestigationGroup". The contact person in relation to administration,technical and billing was Frank Monte of Monte Investigation Group, 630FifthAvenue, New York. The website remains accessible on a worldwide basis.

22I am satisfied that Monte caused to be published both the book and thearticle.

NATURE OF THE CASE - DECEITFUL CONDUCT

23These proceeding were brought by the applicants to restrain the furtherpublication of material, claimed to constitute misleadingand deceptive conductcontrary to theTrade Practices Act 1974(Cth) ("TP Act") and theFair Trading Act 1987(NSW) ("the FT Act"). Claims were also madeunder other provisions of these two Acts. In addition, the applicants allegedthatthey have been defamed by the respondents. Further relief was sought inthe nature of damages, both compensatory and exemplary,and costs. This partof the proceedings is not concerned with the amount of damages, but withquestions of liability and remediesother than damages.

PLEADINGS

24The proceedings commenced on 10 August 2001 and the amended statement ofclaim was filed in court on 29 October 2001.

25The applicants contended that the book contained the following false andmisleading representations.

AS AGAINST THE VERSACE COMPANY:

"14 (a)One or more of the Versace companies was criminallyinvolved with the mafia.

(b)One or more of the Versace companies had been laundering millions of`dirty' dollars for Calabrian organised crime.

(c)One or more of the Versace companies maintained secret ledgers thatrecorded it had been dealing with the Italian underworld.

(d)One or more of the Versace companies was associated with a mobster fromMilan called `Johnny the Cat'.

(e)One or more of the Versace companies was being blackmailed because of itscriminal involvement with the Italian underworld.

(f)One or more of the Versace companies had been infiltrated byorganised crime."

AS AGAINST SANTO:

"(g)Santo Versace was criminally involved with the Italian underworld.

(h)Santo Versace was criminally involved in laundering millions of `dirty'dollars for Calabrian organised crime.

(i)Santo Versace was reasonably suspected of murdering Gianni Versace.

(j)Santo Versace was involved in maintaining secret Versace company ledgersthat recorded transactions with organised crime.

(k)Santo Versace was reasonably suspected of murdering Gianni Versace in orderto conceal that the Second Applicant [Santo] wasengaged in criminalactivity.

(l)Santo Versace was being blackmailed by a mobster."

AS AGAINST DONATELLA:

"(m)Donatella Versace was criminally involved with the Italian underworld.

(n)Donatella Versace was criminally involved in laundering millions of `dirty'dollars for Calabrian organised crime.

(o)Donatella Versace was reasonably suspected of murdering Gianni Versace.

(p)Donatella Versace was involved in maintaining secret Versace companyledgers that recorded transactions with organised crime.

(q)Donatella Versace was reasonably suspected of murdering Gianni Versace inorder to conceal that the Third Applicant [Donatella]was engaged in criminalactivity.

(r)Donatella Versace was being blackmailed by a mobster."

26In addition, the applicants contended that the book contained thefollowing statements which are false and misleading:

"(s)Frank Monte or one or more of the Monte companies wasemployed or engaged by Gianni Versace.

(t)Frank Monte or one or more of the Monte companies had a personalrelationship with Gianni Versace.

(u)Frank Monte or one or more of the Monte companies had a businessrelationship with Gianni Versace.

(v)Frank Monte knew the matters referred to in (a) to (r) by reason of one ormore of the relationships described in (s), (t) and(u)."

27The use of the expression "personal" relationship in subpar (t) isintended to allege, as I read it, that Monte made false andmisleadingrepresentations that discussions took place between Monte and Gianni in abusiness context in the course of which Gianniconfided in Monte.

28In addition, the applicants pleaded that Monte and Arkitude Holdings PtyLimited ("Arkitude") made the above false representationsthrough a website,www.montespy.com and continued to keep those allegations on the websitewhilst believing them to be false. It was also said that Monte organisedthepublication of excerpts from the book, including the excerpts in the articledescribed above. The applicant also pleaded inpar 15A of the amendedstatement of claim that, by reason of publishing the book, Monte falselyrepresented in trade and commercethat the book is a work of fact.

29In relation to the false representations made by the respondents on thewebsite, which is a publication available on a worldwidebasis, the applicantsrelied on, among other matters, the publication of the representations and thecontinuation of publicationof materials on the website, even aftercommencement of this proceeding, notwithstanding that some of the material wasthe subjectof Orders by the High Court of the United Kingdom, restrainingfurther publication in proceedings to which Monte was not a partybut which thepublishing newspapers had been a party.

30The applicants contend that damage has been suffered by them and that Monteand Arkitude intended, threatened and were continuingto repeat theirconduct.

31The applicants' claim in defamation was made against Monte only in respectof material published in the book and the article.In particular, the claimrelied on his giving of authorisation for the book to be made available toThe Weekend Australian for publication of the article. The defamatoryimputations alleged are essentially the same as the representations alleged inrelationto the misleading and deceptive conduct claims set out in detailabove, with the exception of subpars (s) to (v) inclusive, whichwere notincluded in the defamation action.

32In the amended defence, Monte claimed that he submitted the manuscript ofthe book to Pan Macmillan and they revised, edited,and rewrote parts of itbefore printing the book. Arkitude contended that it had no connection orassociation with the book. Therewere denials by both respondents as to theallegations relating to breaches of theTP Act and FT Act. The defence alsosubmitted that Monte is a "prescribed information provider" within the meaningof theTP Act and the FT Act, thus exempting Monte from the operation of therelevant provisions of those Acts. In addition, the respondents reliedon ageneral right of freedom of speech pursuant to the Australian Constitution,although no other particulars were given in relationto this matter and thematter was not argued. As to the claim in defamation, there were denials,together with the non-admissionof a number of the allegations and a range ofstatutory and common law defences.

STATEMENTS RELATING TO DECEASED PERSONS

33Experience teaches that considerable caution should be exercised by a courtbefore accepting an account of conversations attributedto a person sincedeceased, particularly where the conservations are central to the issues inquestion. In this respect the observationsof Wilcox J inClune v CollinsAngus & Robertson Publishers Pty Ltd[1992] FCA 503;(1992) 25 IPR 246 at 253, areapposite to the present case:

"... it is trite to say that evidence of conversations between aliving witness and a dead person should be scrutinised with particularcare,especially where there was no occasion for the dead person to record hisversion of them before his death. Of course, thatis not to say that suchevidence cannot be true; it obviously may. But it does mean that any matteradversely affecting the creditof the witness has special importance; thewitness cannot be refuted in the usual way."

34In the case of Monte's book this observation is of particularsignificance because the book contained what are said to be extensiveconversations with Gianni and Aristotle Onassis, both of whom are dead. In thecase of Onassis, as counsel for the applicants pointedout, Monte felt that hecould use his name freely and without any permission because he was dead. Hehad previously claimed categoricallythat he had obtained permission to listall clients named in his promotional brochure.

WITNESSES

FRANK MONTE

35The oral evidence of Monte extended over four days of detailed testimony andextensive cross-examination. Having regard to theinternal inconsistencies inhis evidence, the inherent improbability of his claims in relation to hisrelationship with Gianni, thefabricated facsimiles and suspect documentaryevidence relied on by him in relation to alleged appointments with Gianni, theevidenceof Dr Strach and the unshaken evidence of other witnesses called incontradiction of his evidence, including the cumulative effectof documentaryevidence furnished by travel documents and records kept in the ordinary courseof the Versace business, I do not accepthis evidence in relation to any matterwhere it was unsubstantiated by reliable documentary evidence and where itconflicted withthe evidence of any other witness. In many instances, whereMonte specified a date, reference to contradictory documentary evidencecaststrong doubt on his assertions. Monte's approach to confidentialityobligations under the alleged "agreement" he provided toGianni, which hedescribed as "a worthless piece of paper", his reference to "poetic licence",hismodus-operandi, his readiness to improvise evidence and speculate onan opportunistic basis to advance his case from the witness box, and his falseassertion that he had approval to use the names of his clients in advertisingmaterial, reinforce the conclusion that no reliancecan be placed on hisevidence with respect to facts in issue.

36In many instances some corroborative evidence from persons said to have beeninvolved could have been called. None were called. The lack of anydocumentary record or independent testimony or evidence of any other kind tosupport his case, in circumstanceswhere Monte claimed to have had aconfidential working relationship with an internationally famous designer overa period of eighteenmonths, is a cogent indication that there in fact was norelationship between Gianni and Monte. This was especially so after itbecameevident to Monte that, following the death of Gianni on 15 July 1997, hisassertions of a relationship with Gianni were immediatelyand vigorouslychallenged by the Versace business and family and one would therefore expectthat any documentary evidence which corroboratedhis claims would be carefullypreserved to verify his assertions. However, no evidence in the nature ofbanking documents, documentsrelevant to funds paid or received, telephonerecords or other credible objective material was provided to the Court tocorroborateany of Monte's assertions relating to his relationship with Gianni.By way of example, one such assertion was that he organised forGianni toundertake an AIDS test. However, no evidence was called in relation to thedoctor said to have been in charge or the technicianwho had allegedly carriedout the test after receiving a substantial payment. No other person who mayhave been privy to Monte'sclaimed contacts with Gianni was called, apart fromhis son, James, whose evidence I do not accept in relation to this aspect.Manyof Monte's claimed communications with Gianni, according to Monte's ownevidence, were not followed up with either decision or action. Many of theevents recounted by Monte and, in particular, the story relating to Abu Akhtarin Egypt, travel well beyond the limitsof credibility. The countervailingevidence, especially when considered cumulatively, points strongly away fromthe scenario advancedby him as to what transpired over the eighteen months ofhis alleged retainer by Gianni.

37Monte tendered an invitation to a memorial celebration in memory of Gianniat the Metropolitan Museum of Art, New York held on4 December 1997. However,Monte was not on the list of invitees. His evidence did not advance thesubstance of his case as to anyrelationship with Gianni. In fact, theinvitation proved nothing except that Monte at some time was able to get holdof a printedinvitation. He said that he was present at this memorial and wasrecognised by Donatella. She denied ever seeing him and I preferher evidenceon this question. Given the tone of the communications between solicitors forthe Versace family and Monte during 1997,after the death of Gianni, it ishighly unlikely that he would have been invited or knowingly admitted to thefunction. By thattime, in the eyes of the Versace family, Monte was plainlypersona non grata.

SANTO VERSACE

38An attempt was made to attack Santo's credibility on the basis of a taxationinvestigation and conviction in relation to allegedbribery of public officialsat first instance in Italy in 1997, which was later reversed on appeal. Nomention was made in the bookof the reversal of this decision which was in1998, (prior to publication of the book and article), although there was areferenceto the fact that the conviction was under appeal. Santo admitted tothe initial conviction and the imposition of a substantial penalty,but soughtto explain it as part of a concerted crackdown by fiscal authorities on theoperations of Italian fashion houses. Hepointed to the fact that the decisionwas reversed on appeal. When giving evidence, he answered questions honestlyand directlyand I am satisfied that his evidence as to his business relationswith his family should be accepted. There was no successful attackincross-examination on Santo's testimony, nor was there any crediblecountervailing evidence. Other evidence called for the applicantswasconsistent with Santo's evidence. Of course, Santo's evidence cannot be takento be conclusive as to the activities of his brother,Gianni, at all times.Gianni undertook a large amount of travel and the two brothers were indifferent locations for a great dealof the relevant period in 1996 - 1997.Nevertheless, his evidence points to a continual and open communication betweenmembers ofthe Versace family, both commercially and personally. In particular,I accept his evidence as to the closeness of family relationswith Gianni.

DONATELLA VERSACE

39Donatella's evidence was not successfully challenged in cross-examination.Nor was any countervailing evidence adduced to warrantdisbelief of hertestimony. I accept her evidence particularly as to the close family andcommercial relationship between her andher brothers and the open communicationthey shared. Her evidence as to the activities of her brother Gianni waslimited becausethey were apart for much of the time. However, when taken intoaccount with other evidence, it provided support to the absence ofanyrelationship between Monte and Gianni and to the unlikelihood of Gianni havingmade allegations against her and Santo of theextreme serious nature, asclaimed by Monte.

JAMES MONTE

40James Monte ("James") furnished a brief affidavit as to an alleged encounterbetween his father, Frank Monte and Gianni in Miamion or about 2 January 1997.Gianni's documentary travel records, including airline tickets, indicated thatGianni was in New Yorkat this time. For reasons given elsewhere, I do notaccept that this meeting or any meeting between Monte and Gianni ever tookplace. The unusual circumstances of this "meeting", with James standingnearby, and the lack of any subsequent action following the meetingascontemplated by his evidence as to what he was told had transpired between hisfather and Gianni, served to reinforce the documentaryevidence detailingGianni's travel movements. I have reached the conclusion that James' evidencecannot be accepted. It was clearfrom the cross-examination that James actedat the direction of his father in relation to the activities of Arkitude andhis relationshipwith his father appears to be a close one. His father is thesole shareholder of Arkitude, which employs James. In cross-examinationhisrecollection was poor and select. I am satisfied on the evidence that hisfather has been a dominant influence on him in theconduct of the affairs ofMonte Investigations Services in the relevant period from 1996 to the presenttime. I do not accept hisevidence where it conflicted with other evidence inrelation to the alleged Miami meeting.

41Although it is common ground that James went to Egypt in July 1996, hisversion of events is significantly different from thatof his father asrecounted in the book. He claimed that he went to Cairo to meet a man calledAbu whose other name he was not told. If Monte's evidence were to be accepted,there was an "agreement" between himself and Gianni dated 19 July 1996, whichspecified,in Monte's handwriting, "Meet or locate Mr Akhtar in Egypt or otherplace". In the book, Monte stated that Gianni wanted to talkto James aboutwhat happened in Cairo and that this discussion was to take place early in1997. There was reference in the bookto "the Arabs", to the fact that theArabs had threatened Monte and James and it was apparently agreed that Monte,James and Gianniwould "go through everything at length in a few days". Withinthis context, where Gianni allegedly wanted to meet James, it is,to say theleast, highly improbable that James would have been left standing across astreet in Miami on 2 January 1997 while hisfather had a conversation withGianni in respect of which nothing further occurred. Moreover, even accordingto Monte's account,the conversation with Gianni on that occasion made noreference to any activities in Egypt involving James. James' evidence didnotprovide any relevant corroboration for the allegations of Monte which arecomplained of.

JUSTINE WALLACE

42The evidence of Ms Wallace should be approached with considerable caution.She was featured prominently in the book. Both inchief and undercross-examination, it was evident that her recollection was not accurate in anumber of respects and that she borestrong animosity towards Monte. Herevidence as to her relationship with Monte was, in part, quite inconsistent.However, notwithstandingthese reservations, her evidence as to Monte stumblingacross an original Versace facsimile in a New York street and filing it awayfor future reference on the basis that it may be useful at some future time hasthe ring of truth and was consistent with her statementsthat before Gianni'sdeath, Monte had spoken of Gianni to others as a client. Her evidence was alsoconsistent with a conclusionthat Monte fabricated the facsimiles produced tothe Court or was at least aware of their fabrication for the purpose ofsupportinghis claims to an association with Gianni. I am satisfied on theevidence referred to below that Monte was responsible for theirfabrication.Further, and independently of Wallace's evidence, I am satisfied that there isa high probability that Monte obtainedat least one authentic Versace facsimilebefore Gianni's death and it was the existence of this document thatcontributed to Montehaving the confidence to seek out and secure the extensivepublicity he so successfully obtained after the murder.

OTHER WITNESSES

43A number of other witnesses associated with the House of Versace in Milanand the United States were called for the applicants,by video-link, includingGiovanni Galbiati, the first applicant's Group General Manager; Marta Colombo,his personal assistant; CarlottaCorazza, who for a short period was juniorpersonal secretary to Gianni; Antonio Panizza, the auditor for the firstapplicant; RebeccaSprizza, secretarial assistant for the applicants' UnitedStates counsel; and Daniele Ballestrazzi, the Chief Financial Officer ofthegroup. Mr Ballestrazzi testified as to the travel records of Gianni. Therewas no basis in the evidence led by the applicantsfor rejecting the substanceof their evidence. They were all available for cross-examination if required.This evidence was notsuccessfully challenged in cross-examination in theinstances where there was cross-examination. There was no counter evidence tocontradict the evidence led by the applicants and I accept it. I have kept inmind the association of the witnesses with the Versacebusiness by reason oftheir employment by the Versace companies but I see no reason on the evidencebefore me to doubt their testimonyor the authenticity of documentary materialfurnished by them.

ANTONIO D'AMICO

44The evidence was that during various parts of the period from early 1996until the death of Gianni, his close and constant companionwas Antonio D'Amico("D'Amico"). The evidence of Juan Deleon ("Deleon"), Gianni's New Yorkchauffeur, reinforced the existence ofthis close relationship. Deleon statedthat it was not the practice of Gianni to walk unaccompanied in public and thathe was alwaysaccompanied by D'Amico. D'Amico swore an affidavit, but it wasnot read in evidence. No explanation was given for not calling D'Amicoapartfrom the submission that he was not a necessary witness. Reliance was placedby the respondents on the principle inJones v Dunkel[1959] HCA 8;(1959) 101 CLR 298at 321-2. It was argued that that principle touches on the present casebecause it is designed to strengthen the drawing of an inferenceavailable onother material before the Court. In the present case, I do not think thatthere is any inference available on the evidence,looked at as a whole,relating to the representations and conduct of Monte which could bestrengthened by calling D'Amico. I thereforedo not discount the force of theapplicant's evidence by reason of the failure to call D'Amico.

REPRESENTATIONS - LEGAL ISSUES

45This case does not call for a delineation of any boundary between the limitsof consumer protection law and that body of lawconcerning defamation. Such atask would be fruitless because they are clearly capable of covering the sameground to come extent. The provisions of theTP Act and FT Act must be giventheir natural and ordinary meaning. If provisions of that legislation overlapto some extent with the traditionalarea of defamation law, it is notappropriate to read down the legislation by reference to any inferential orimplied constraintthat there should not be any such overlap. This approachhas been established in the case of the common law principle of passingoff inits relation to Trade Practices legislation. It is therefore no defence to aclaim under theTP Act or the FT Act to argue that the field is already coveredby the law of defamation. There is no reason why the Trade Practices orFairTrading legislation should be read down to "accommodate" this body of law.

46In particular, when deciding on the reach of the "information provider"exemptions in the legislation, it is necessary to readthese provisions in eachof the Acts as a whole, taking into account the circumstances in which theseprovisions came to be insertedin the legislation. The task for the Court isto consider the operation of those sections in the circumstances before it andnotto limit the scope of the legislation by reference to the common law orlegislation relating to defamation.

47In these proceedings, the basic claims underss 52 and53 of theTP Actand ss 42 and 44 of the FT Act, for misleading and deceptive conduct andfor the making of false representations in trade or commerce,were essentiallythat:

*the respondents made and threatened to make certain representations intrade and commerce;

* those representations are false;

*by reason of the respondents' conduct in making and threatening to make thosefalse representations, the applicants have suffereddamage.

Furthermore, it is said, the respondents have each engaged and are threateningto engage in conduct that is misleading and deceptive.

The applicants submitted that the respondents falsely represented anaffiliation between Monte and/or the Monte group of companiesand Gianni and/orthe applicants in contravention ofs 53 of theTP Act and s 44 of theFT Act. The claimed affiliation is that Monte or one of his companies hadGianni or companies of his as a client. It was further claimed that therespondents falsely represented that Gianni, or one or more of the Versacecompanies, agreed toacquire his, its or their services contrary tos 53(bb) of theTP Act and s 44(d) of the FT Act. The applicantsalso submitted that the respondents falsely represented that their services forprivateinvestigation have or had the sponsorship or approval of Gianni or anyof the Versace companies contrary tos 53(c) of theTP Act ands 44(e) of the FT Act.

48Section 52 of theTP Act provides:

"52 Misleading or deceptive conduct

(1)A corporation shall not, in trade or commerce, engage in conduct that ismisleading or deceptive or is likely to mislead ordeceive.

(2)Nothing in the succeeding provisions of this Division shall be taken aslimiting by implication the generality of subsection(1)."

49Section 42 of the FT Act is in identical terms tos 52 of theTPAct, with the exception thats 42(1) refers to "[a] person" whereass 52(1) refers to "[a] corporation".

50Section 53 relevantly provides:

"53 False or misleading representations

A corporation shall not, in trade or commerce, in connexion with the supplyor possible supply of goods or services or in connexionwith the promotion byany means of the supply or use of goods or services:

...

(bb)falsely represent that a particular person has agreed to acquire goods orservices;

(c)represent that goods or services have sponsorship, approval, performancecharacteristics, accessories, uses or benefits theydo not have;

(d)represent that the corporation has a sponsorship, approval or affiliationit does not have;

..."

51Section 44 of the FT Act is in similar terms tos 53 of theTPAct.

52At the heart of the applicants' case is the contention that there was nevera relationship of any kind between Monte and Gianni. If there was arelationship, the basis for most of the allegations complained of is destroyed.It was submitted that the relationshipwhich was said to have been evidenced bytelephone conversations, meetings, facsimiles, agreements, diary notes,appointment books,and the direct observations of James in respect of onealleged encounter between Monte and Gianni, never in fact existed.

MONTE/GIANNI `RELATIONSHIP' - FACTUAL FINDINGS

53The relationship was said to have begun after an appearance on 17 January1996 by Monte on a television show aired by the AmericanBroadcastingCorporation network, in which Monte talked about private investigationtechniques. Monte said that after the televisionshow was aired, he received atelephone call from a person whom he later knew to be Gianni. According toMonte, the caller said hewas interested in talking about security anddescribed himself as Gianni, an Italian businessman, in New York. Monte saidthat,to the best of his recollection, the telephone call was on Thursday 21March 1996, and that he subsequently met with Gianni on thatday.

54The meeting was said to have taken place at 5 East Sixty-Fourth Street,Manhattan. Monte said that he had a conversation withGianni at theCafé Pierre. Gianni wanted to talk about security for his houses. Heoffered to send Monte some shirts butMonte declined.

55Airline tickets were tendered by the applicants as evidence of the travelmovements of Gianni. These support the inference thatGianni was not in NewYork on 21 March 1996. They record that he was booked to fly from New York toMiami on 9 March 1996 and returnon 25 March. It is possible that Gianni madea detour to New York between those dates. However, such a conclusion would bepurespeculation without any evidentiary basis. In addition, there wasevidence from Gianni's personal chauffeur in New York, Deleon,which I accept,that it would be most unusual for Gianni to walk through New York on his own.He was usually accompanied by his closefriend, D'Amico. Deleon was workingfor Gianni from June 1996 onwards but I accept his evidence as to Gianni'snormal patterns ofconduct as there is nothing to suggest that in early 1996his behaviour differed to that in mid-1996. This evidence is not conclusive,but it again points to a finding against Monte having had a meeting with Giannion 21 March 1996. Deleon said that he was closelyaware of Gianni's movementsin New York in 1996 and 1997 and that Gianni never mentioned a meeting withMonte. Nor did he recallGianni ever going to the Café Pierre. Montehad a record in his appointment book for 21 March 1996 in which there is areferenceto "Italian man". However, Monte was unsure whether this was areference to Gianni. For reasons I will elaborate on later, I considerthatthe appointment book is a suspect document and I am not prepared to rely on theaccuracy of anything recorded in it relatingto Gianni.

56There is no other appointment book entry or documentary record of any kindin relation to this first alleged meeting betweenMonte and Gianni. One wouldordinarily expect some record, note or confirmation of this meeting. Therewere also no witnesses ofany kind to this encounter.

57Monte claimed that between April and July 1996, he received more telephonecalls from Gianni and that the two met several times,always at the same place,which was a bench in Central Park near the Children's Zoo. He claimed Gianniasked him questions aboutbugging, security and kidnapping and that he gaveGianni his telephone numbers and Gianni always called him by the name "Franco"and never referred to him by the name of Monte. Monte claimed that he toldGianni that he could not give a firm estimate of the costof guarding him andhis stores against theft but if Gianni paid him a retainer of $US one millionper year, Monte would see whathe could do. This offer was not taken up byGianni and there was no note or record of this alleged exchange and no otherwitnessescalled to substantiate it. Monte said that in another of themeetings, Gianni brought a number of listening devices and Monte gavehim someadvice as to the range of the listening devices and their quality. Nothingseemed to have eventuated from this conversation. The suggestion in Monte'saffidavit was that there were a number of meetings in that period at CentralPark.

58During the period from the end of April to the end of June 1996, Gianni'stravel records, which I accept as genuine, indicatedthat Gianni was only inNew York between 1-9 May 1996. Monte could not point to any entry in hisappointment book to support anymeeting with Gianni during this period. FromMonte's appointment book, it appeared that he was in Los Angeles until 3 May.Therefore,it would appear that there were only six days in the two monthperiod suggested by Monte in which the alleged meetings could havetaken place.This does not sit easily with the suggestion that over the two months, therewas a number of meetings and discussions.

59On 29 May 1996, there was an appointment book entry, in the middle of whichappeared the words "items for Versace". Accordingto the handwriting anddocument expert, Dr Strach, whose evidence was accepted by Monte's expert andcounsel, the words "items forVersace" were written in different ink to therest of the entry, indicating that they were probably inserted at a differenttime. He could not say when they were entered. This was one of the featuresof the appointment book which, in my view, renders it unreliableas containingrecords of conversations or meetings between Monte and Gianni. In hisaffidavit, Monte made no reference to 29 Mayor any "items for Versace". I donot accept that any of these meetings, alleged to have taken place betweenApril and the end ofJune 1996, took place.

60On 3 June 1996, Monte stated that Gianni called him and Monte sent by way offacsimile, a contract for unspecified security operationsand a retainer. Thisdocument was sent back unsigned. There was an appointment book entry for thisdate which stated "fax fromVersace". I do not accept that the entry was madeon that day or that it affords any evidence of any contact with Gianni. Theentrywas written in different ink to other surrounding entries. On theevidence, I do not accept it as a genuine record.

61In relation to the facsimile referred to above, some copy facsimiles wereproduced by Monte and tendered but all these were shownby Dr Strach, whoseevidence I accept, to have been fabricated in relation to both date andcontent. The subject of the facsimilesand evidence relating to them is dealtwith below.

62Monte claimed that Gianni called him in Miami on 8 June 1996. According toMonte, Gianni inquired as to how easy it would itbe for someone to kidnap himin New York or Miami. Monte further claimed that there was another call fromGianni on 9 June 1996relating to surveillance by the Federal Bureau ofInvestigation ("FBI"). However, the appointment book entry for that date madereference to "ringing back Versace at 2pm". This is inconsistent with Monte'sclaim of Gianni calling him. I find that these conversationsdid not takeplace.

63In early July 1996, (Monte said later it was 2 July), Monte stated thatGianni telephoned him at home in New York and asked himto meet for coffee atNelos restaurant coffee shop on Madison Avenue. He said that there was adiscussion about money launderingand blackmail by someone Gianni allegedlycalled "Johnny the Cat", a Calabrian criminal, who took Gianni's handwrittenrecords andwas demanding $US five million for their return. There wasdiscussion about Monte going to Milan. However, travel records and hotelvouchers, which were not challenged by the respondents, indicated that thismeeting probably did not take place because Gianni wasin Italy, on 2 and 3July 1996 and a copy of the hotel receipt from the "Hotel Ritz" showed that hewas in Paris between 4 and 10July 1996. The travel records also indicatedthat Gianni was in New York from 10 to 13 July. Monte alleged that anotherconversationtook place "a few days later", after 5 July, at Central Park nearthe Children's Zoo, in which Gianni referred to an Algerian man,named Abu, whowas the flatmate of "Johnny the Cat", and who was said to have the ledgerbooks. Monte was asked to go to Milan and"pay him off". A few days later, ina telephone conversation with Monte, Gianni was said to have promised to giveJames a dozensuits. However, there was no indication that these suits wereever sent or received and it was not mentioned by either Monte orJames intheir evidence.

64There was an entry in the 1996 appointment book for Friday 5 July referringto Gianni and a problem with books. According tothe evidence of Dr Strach,this entry was probably written out of sequence with entries in the surroundingpages. This conclusionwas reached through an analysis of latent writingimpressions on the pages surrounding the appointment book entry. Dr Strachidentifiedthe entry as suspect. I am satisfied that this reinforces the doubton any meeting having been held in early July of 1996.

65Monte alleged that a further meeting took place with Gianni on 6 August 1996in which there was discussion about Santo and Donatella. There was no entry inthe 1996 appointment book in relation to this. Monte claimed that he recalledthe appointment because itwas shortly after his son James came back from theEgyptian assignment with Abu and they needed to give a report to Gianni. Ameetingwas said to have taken place in a restaurant in Barney's DepartmentStore on Madison Avenue. There was no reference in Monte's recollectionof themeeting to any report as to James' activities. Monte however, recalled that anumber of serious allegations were supposedlymade by Gianni against Santo andDonatella in that conversation. According to Monte, he told Gianni that hecould provide him witharound the clock protection but Gianni declined thisoffer. There was no evidence provided to corroborate this meeting. I amsatisfiedthat it did not take place.

66There were more telephone conversations alleged to have taken place onvarious dates. In the 1996 appointment book, entriesrelating to Gianniappeared on the dates of 20, 25 and 26 October 1996. Dr Strach, found thatthese entries were made out of sequencewith entries appearing on thesurrounding pages. The corollary of Dr Strach's findings in relation to theseparticular entries isthat it would be unsafe and unreliable to proceed on thebasis that these entries were made on the date under which they were written.Thus, they could have been written at any time. On the basis of Dr Strach'sevidence, which was not challenged, I conclude thatit would be unsafe to treatthese as genuine entries and accept them at face value. In relation to anumber of other entries inthe 1996 appointment book, Dr Strach noted that theywere made in different ink from that used for most surrounding entries. Theseentries appeared beneath the following dates: 3 June, 5 July, 31 July, 29November, 30 November and 31 December 1996. The entriesfor 29 and 30 Novemberwere also out of sequences with entries on surrounding pages. I do notconsider any of these to be genuineentries.

67Monte claimed that Gianni called him "a few times" on 30 November 1996 aboutpossible meetings. They met at 5 East Sixty-fourthStreet and walked toCentral Park. Thereafter, they supposedly went to the lower level restaurantat Barney's Department Store wherethey discussed blood analysis. Monteclaimed he was given money for his "past efforts". There was no record inrelation to thereceipt, payment or deposit of this money, nor anycontemporaneous note made of the payment. Nor is the amount specified.

68These purported entries in the 1996 appointment on 29 and 30 Novemberreferred to "Cat", which Monte said is a reference to Gianni. He said thatthis was the name used by him, in the interest of discretion, so as not todisclose the identity of his client. However,the expression "Cat" was alsoused in an entry of 26 October 1996, next to which there was an entry in theadjacent column usingthe name "Versace". There were also numerous otherreferences to "Versace" in the appointment book, in addition to meetings with"Versace" and the like. This is quite inconsistent with the improvisedexplanation proffered in the witness box by Monte. Monte'sclaim that "Cat"was used as a code because there was an escalation in the seriousness ofGianni's affairs, is simply not crediblegiven that the word "Versace" was usedthroughout the appointment books, including the records for 1997.

69As mentioned earlier, there was a further alleged meeting between Monte andGianni on 2 January 1997 in Miami. James was allegedlynearby but could nothear any of the conversation, although he stated that he recognised Gianni fromshows on television. However,travel documents indicated that Gianni was notin Miami on 2 January 1997. He flew from Miami to New York on 30 December1996. Again, these records were not challenged in cross-examination. Therewas also no indication of any evidence to support a possibilitythat Giannimade a trip back to Miami. Such a conclusion could not be reached on thematerial. Furthermore, the claim of Jamesbeing left in waiting across theroad while his father spoke with Gianni cannot be substantiated, especiallywhen one considers thatJames stated that his father said to him after thealleged meeting:

"Well that went well, he wants us to meet again in a few days,so we will go to the Breakers Hotel and wait for his call. He wantsus to dosome more work."

70There was no indication of any follow up on the suggestion of a furthermeeting "in a few days" in the affidavits of either Jamesor Frank Monte. Thisonly serves to reinforce the conclusion that it cannot be said that any meetingtook place between Monte andGianni where James was present.

71There was an earlier appointment book entry for 6 December 1996 mentioningGianni and a facsimile. This related to Monte allegedlyreceiving a facsimileregarding blood samples and then forwarding the original facsimile anddocuments to a private Milan addressof Gianni. There was simply nocorroboration of this suggestion. No records have been produced from a doctorregarding the bloodsamples, or of the charges for the test which Monte allegedhe arranged to have carried out at the request of Gianni.

72In addition to the above anomalies in the evidence relied on by therespondents, further discrepancy is found in the lack ofresolution in relationto a number of agreements that arose from alleged conversations between Monteand Gianni. For example, Montemade reference to offering Gianni protectionfor $US20,000 per week, with Monte's son and a SAS commando to be with Gianniaroundthe clock for six days continually. According to Monte, Gianni statedthat he would call Monte the following day. There was nofollow up on thisconversation. There was also said to have been a discussion concerning Montecarrying out an urgent stocktakeof some stores in New York because Gianni hadsuspected that jewellery was being stolen. The magnitude, nature and extent ofsucha stocktake make it highly unlikely that such an enormous task would havebeen given to Monte. In fact Monte agreed that the stocktakedid not takeplace. In addition, there was also reference to a conversation on 30 May 1997,when Gianni allegedly referred to sendinga gift to Monte's home. There was norecord of any gift ever having been sent or received. There was also asupposed referencein that conversation to Monte and James and some"mercenaries" being available by the end of July and mid-August, but again,therewas no indication of any arrangements having been made for the assemblyof such persons.

73Having regard to the evidence referred to above, the inherent likelihood asto what one would expect had Monte's assertions beentrue, and the absence ofany record or corroboration of any kind that could be safely relied on, I havereached the firm conclusionthat there was never any relationship, business,confidential or otherwise, between Monte and Gianni. Statements made to thecontraryin the book, the article, on the website and on oath by Monte arefalse. I do not accept that Monte ever spoke or otherwise communicatedwithGianni, either in person, or by facsimile or telephone as alleged in the book,the article, the website and in his sworn evidenceto this Court.

FACSIMILES RELIED ON BY MONTE

74In support of his claim of a relationship with Gianni, Monte relied on aseries of facsimiles allegedly from Gianni, althoughpurportedly signed in hisname by his junior personal assistant, Carlotta Corazza, with her initials"CC". The reliance on thesefacsimiles was in addition to the reliance on theappointment books for 1996 and 1997 and a number of loose sheets of paper whichhe claimed to be diary pages.

75The copy facsimiles referred to in the affidavit evidence, which wereproduced to the Court, were the subject of a detailed documentand handwritinganalysis by Dr Strach. I am satisfied that Dr Strach was well qualified togive expert evidence as to the authenticityof the documents and I accept thathe offered his evidence with expertise, appropriate diligence and caution. Noevidence to thecontrary was called for the respondents. In fact, the evidenceby Dr Strach relating to the analysis of handwriting in the appointmentbooksand diary pages was accepted on behalf of the respondents. With respect to thematerial concerning the facsimiles, Monte concededthat after hearing DrStrach's evidence, together with the evidence of other witnesses, he could notrely on the evidence of thosefacsimiles to support his claim of having had anyrelationship or contact with Gianni. A handwriting expert was consulted by therespondents and was present in Court during part of the cross-examination of DrStrach. However, no evidence was brought by therespondents to challenge theevidence or conclusions of Dr Strach. Monte simply resorted to highlightingthe limitations in theevidence given by Dr Strach.

76In his first report Dr Strach, who holds a Doctor of Philosophy in Chemistryand continues to practise as a forensic handwritingand document examiner,concluded in relation to thefacsimilesrelied on by Monte as follows:

"A likely scenariofor the appearance of the fax coverpage details ... is that they originated in a genuine fax transmission fromGianni Versace. Originaldetails have been removed and on copies of the`cleaned' fax transmission new messages have been typed, computer printed orphotocopied. Parts of the fax TTI headers have been removed to avoid thepresence of obvious duplication. Literal cut and paste or other imagemanipulation processes along with several reproduction steps would have beenused to produce various versions of the documents examined."(Emphasis inoriginal)

77In carrying out his handwriting analysis, Dr Strach had regard to genuinesignatures and documents furnished to him by the applicants. He compared thosewith the questioned documents produced by Monte.

78After Dr Strach's first report, further documents produced to him by Montewere considered by him in a second report. In thissecond report, Dr Strachstated that he had received and examined "originals" (earlier generationcopies) of some of the questioneddocuments referred to in his first report.He then proceeded to analyse these earlier generation copies, carrying out hisanalysisby reference to the presence of what he described as vertical, linearvoids in the documents under examination. He concluded thatit was highlyprobable that the facsimile cover pro forma sheet details reproduced on thedocuments examined by him originated inthe one facsimile transmission. Hewent on to make further findings to the effect that the logical inference fromhis examinationwas that the genuine facsimile transmission used to create thequestioned documents contained lines that had been cut off. The subsequentdocuments furnished to him were to some extent clearer documents than theearlier documents. This group of clearer documents wasnot tendered on behalfof Monte in evidence. Dr Strach considered that there was "very strongevidence" that all of the messagetexts on the questioned documents had beenadded to an existing facsimile transmission and this reinforced his conclusionas to thelikely scenario referred to in the first report which he put as beinga highly probable explanation for his observations.

79On all the facsimile cover sheets there was the House of Versace medallionemblem. Above the name "Gianni Versace" at the bottomof each page thereappeared the initials "CC" which Monte said were the initials of CarlottaCorazza. Her name was incorrectly speltin the book and the affidavits swornby Monte. The evidence indicated that she had been a junior personal assistantto Gianni betweenMarch 1996 to July 1997. Her evidence was that the initialson the documents produced by Monte were not in her handwriting and thatshe hadnever heard of Monte at the time the reported documents had been dated. Shegave evidence that she had never signed or sentany facsimiles to Monte. Herevidence was not shaken in cross-examination and I accept it. At the requestof counsel for Monte,she wrote her initials rapidly on a sheet of paper andthese were made available to the respondents. No evidence was called by therespondents to the effect that the handwritten initials on that sheet were inany way similar to those on the facsimiles. One suchfacsimile relied on wasdated 8 October 1996. This October facsimile contained a somewhat terseassignment to Monte that he wasto meet Abu at the Beverley Hills Hotel,California on 19 October 1996 and that Abu would call him. It further statedthere hadbeen a funds transfer to "Amex". Above the italicised words "GianniVersace" on the facsimile, there appeared the initials "CC".

80In addition, the facsimiles in question were dated from 31 May 1996 throughto 8 October 1996. Ms Corazza's evidence was thatby September 1996 she wasnot working at the Via Gesù office of Gianni Versace SpA in Milan fromwhich the facsimiles appearto have been sent according to the address on thecover page, but that she had moved to the administrative section of anotheroffice. This supported her evidence that it was highly unlikely that she didsend any facsimiles to Monte. It was also apparent that itwas highly unlikelythat she would have had the authority to sign facsimiles or confidentialmaterial on behalf of Gianni.

81Carlotta Corazza also denied Monte's assertion that she obtained or agreedto obtain any telephone records at any time from Montewhich he wanted so as toverify his relationship with Gianni. She said that she never spoke with him inthe period in question andthat as at July 1997 she did not even know how toget such records because it was outside her field of responsibility.

82Doubt is further cast upon the authenticity of the facsimiles when oneexamines documents claimed to have been attached to twofacsimiles inparticular. On two occasions, an agreement was said to have been entered intobetween Monte and Gianni for the provisionof investigative services. The twoagreements were substantially in the same form. These documented agreementswere allegedly sentby way of facsimile, on which there appeared the initials"CC". The agreements themselves were purportedly signed by Carlotta Corazzabyway of her initials "CC". One problem lay in the fact that there was aninherent improbability that Gianni or Carlotta Corazzawould have signed any ofthe purported `Agreement for Service And Authority To Perform Assignment' Monteclaimed to have sent toGianni. The handwriting on both, with the exception ofthe initials "CC", is that of Monte. The agreements were purportedly bindingas between Sobranie Pty Limited (the investigator) and Gianni, an individual ofVia Gesù, Milan. According to AustralianSecurities and InvestmentCommission ("ASIC") records, Monte's two sons, James and Adam, were directorsof Sobranie Pty Limited between1992 and 1998, and 1994 and 2000 respectively,while Monte was a director from 24 September 1992 until 6 April 1994. Theconsiderationfor the 31 May 1996 agreement was $5,000 in what appeared to beUS dollars. The work specified in the agreement was for the performanceofconfidential inquiries and the provision of advice. There was aconfidentiality clause as to the client's affairs and an hourlyrate specifiedat $US 100 per hour. The "instructions" for information obtained by theinvestigator were to be treated as confidentialand not to be disclosed by theinvestigator to third parties, other than the client, without express writtenconsent of the clientor pursuant to a court order. It is to be noted inpassing that Monte did not hesitate, after the death of Gianni, to seek outpublicityand disclose his alleged commercial relationship with Gianni. Hisexplanation when questioned about his attitude to the non-disclosureappearedto be that Gianni (like Onassis) had passed away and that therefore theobligation no longer applied.

83The agreement of 19 July 1996, said to have been enclosed with the facsimileof 22 July, was almost identical to the May agreement,except for the retainer,which was shown to be as $20,000 (in unspecified currency). The assignmentalso differed in so far as itdictated for the investigator to "meet or locateAkhtar in Egypt or other place", a somewhat open ended and non-conclusiveassignment. There was no detail as to what is to or what may happen whenAkhtar is met or located, despite the fact that the client was to providetothe investigator all such information, documents and other cooperation as theinvestigator may require. This whole scenario smacksof unreality. I do notaccept it. There was a reference in the facsimile message allegedly signed byCarlotta Corazza on behalfof Gianni to "Money as before" yet there was noevidence of any banking records, note, receipt or other documents as to thepaymentor expenditure of this money. Monte took the view that because theagreement was a New South Wales document it was not in any waybinding upon theparties. He said that Gianni only wanted to have something in writing for hisown comfort or satisfaction. Itis difficult to see what comfort orsatisfaction the agreement could give. Again, this seems highly improbable andundermines anyattempt to assert the authenticity of the documents and thefacsimiles in general.

84When confronted with the evidence relating to the facsimiles, Monte's onlyexplanation for the fabrication of the facsimilesrelied on by him and in hispossession was that somehow he was "duped" or "set up" either by his formercompanion, Ms Wallace orhis agent, Mr Couri Hay. No explanation was given asto how, why, when or where such falsification was perpetrated, nor was anydocument, note or record furnished in relation to any such alleged consortedattempt to discredit him. Monte insisted that the originaldocuments, which hedid not keep, (as one might have expected had his explanation been true), weregenuine. I do not accept thisexplanation. This explanation, in my view, wasimprovised on the spur of the moment in the witness box by Monte in a vainattemptto explain the anomalies in his facsimile material. Not only do thefacsimiles and agreements not support Monte's case but theypositively detractfrom his assertions. I find that the facsimiles were fabricated by Monte orwith his knowledge in an attempt toprovide some documentary basis to supporthis fabricated allegations of a relationship with Gianni and knowledge of theaffairs ofGianni and the Versace family and companies direct from Giannihimself.

85I am satisfied that by the time of Gianni's death on 15 July 1997, Monte hadobtained an original and genuine facsimile fromthe House of Versace and eitherby himself or with his knowledge and on his behalf, the questioned facsimileshad been fabricated. This is consistent with the evidence of Ms Wallace as tothe finding of the facsimile in a New York street and with her statementthatprior to the death of Gianni, Monte had boasted extensively about having Giannias a client. It is also consistent with Monteseeing an opportunity and havingwhat she described as a "funny file" for later use. The timing of the murderof Gianni providedthe opportunity to take advantage of this material. Forreasons given in this judgment, I approach the evidence of Ms Wallace withcaution having regard to her obvious animosity to Monte. In relation to thefinding, use and approach of Monte in relation to thefacsimile material,however, I accept her evidence, including the keeping of a "funny file".However, independently of her evidenceI am prepared to also rely on the otherevidence in these proceedings to infer that Monte had obtained the originalfacsimile orfacsimiles prior to the death of Gianni and then fabricated thefacsimiles or had been privy to their fabrication.

86Accordingly, for the above reasons, I am satisfied that the facsimilematerial relied on by Monte provides no basis for inferringa relationship withGianni. Indeed it strongly supports the contrary view that, if there was agenuine relationship it would notbe necessary to fabricate support for therelationship. The perceived need for such fabrication in itself supports theconclusionthat there was no relationship.

MONTE DIARIES AND APPOINTMENT BOOKS

87The evidence of Dr Strach, with which the handwriting expert consulted byMonte was said to be in agreement, was to the effectthat neither theappointment books nor the loose sheets of paper referred to as diary entriesproduced by Monte could be taken onface value. In the short time availablefor analysis, Dr Strach was able to analyse a number of the entries purportedlyrelatingto Gianni in the material proffered by Monte. He concluded that in anumber of instances they had not been entered in sequentialorder. He wasunable to say at what particular time they were entered. In conducting hisanalysis, he used a sophisticated apparatus,known as an electrostaticdetection apparatus ("ESDA") in relation to a number of entries, which led himto the conclusion that theywere not made on the date under which they appear.In summary, he concluded that six of the 1996 appointment book entriesallegedlyrelating to Gianni (referred to above in [66]) were made later thanthe date on which they are recorded in the appointment book. Ink analysis alsoshowed that there were insertions of references to Gianni in earlier entrieswhich were not made at the same timeas the entry in which they appear.

88The ESDA used by Dr Strach, which produces images of writing impressionsleft after a person had written on a sheet of paper,was sufficient to castserious doubt on the reliability of the appointment book in relation to claimedGianni entries. He also identifieda number of instances where entries hadbeen made in different ball point pens to those used for surrounding entries onthose dates.These entries purportedly related to meetings or telephoneconversations with Gianni.

89The evidence of Dr Strach, which was not contested, although limited becauseof time constraints in its extent and precision,leads me to the conclusionthat, when taken into account with other evidence as to Monte's lack ofcredibility in relation to thefabrication of the facsimiles, the entries inthe appointment books and the loose sheets of paper had been inserted andwritten byMonte in order to support his contention of a relationship withGianni. They cannot be relied on in any way in my view to supportany of hisclaims. The only person with any substantial interest in fabricating suchdocuments, including the facsimiles, was Monte. In my view, the so-called"documentary" evidence relied on by Monte to advance his case have the oppositeeffect and are a factorwhich tends to reinforce the conclusion I have reachedas to his evidence lacking credibility.

CONCLUSIONS ON ALLEGED RELATIONSHIP

90I am satisfied that the representations alleged in the amended statement ofclaim in relation to Frank Monte and his contactand communication with Gianniin subpars 14(s)-(u) inclusive have been made. In addition, I am satisfiedthat Monte has made falserepresentations that he knew the matters complainedof in relation to the Versace companies, Donatella and Santo by reason of hisclaimed close relationship with Gianni, forged through his alleged assignmentsand dealings. I am satisfied that Monte has falselyrepresented a personalrelationship with Gianni in the nature of a confidante and adviser in thecontext of an alleged commercialrelationship. I am also satisfied that falserepresentations were made by the respondents that the book is a work of fact insofar as it related to Gianni.

91Apart from the breadth of the reference to "personal relationship", thoserepresentations in subpars 14(s)-(u) which I have foundto be made, were notsubstantially disputed as being "representations" by Monte. It is notnecessary to discuss in detail the evidencewhich provided the basis for havingfound that the said representations were made. There were a number of specificreferences toparts of the book, the article, the website and other evidencedetailed by the applicants in relation to each of these representationswhichessentially turn on the relationship between Monte and Gianni.

92For the reasons given above in relation to these representations, I amsatisfied that the conduct of Monte was deceptive andmisleading within themeaning of theTP Act and the FT Act.

93My finding of falsity as to the representations concerning the allegedrelationship between Monte and Gianni also affects mostof the otherrepresentations made by Monte in relation to the applicants. I am satisfiedthat in making the false allegations ofa relationship with Gianni, the otherrepresentations made by Monte in relation to Santo, Donatella and the Versacecompany, as outlinedin the amended statement of claim, conveyed a false senseof authenticity and "inside" information from a direct source, namely Gianni.Accordingly, in making those other representations, in the context of a claimedbut non-existent relationship with Gianni, I am satisfiedthat the conduct ofMonte and Arkitude, can properly be characterised as misleading and deceptive.The remaining allegations weremade in light of the false suggestion of directinformation arising in the relationship. By way of example, in the book at 35,Montemade it clear that he was purporting to have information which nobodyelse had, except for Gianni's "inner circle". In this example,he falselyrepresented himself as being in an inside position to know, over and aboveeveryone else, the "true position" and thatis why his statements as to hisalleged discussions with Gianni are of central importance. This purportedinside knowledge was,in effect, the "edge" that he claimed over otherspurporting to gossip or speculate about Gianni and his murder because on thebasisof his recollection, the information had been obtained from Giannihimself.

WERE THE OTHER REPRESENTATIONS ALLEGED IN SUBPARS 14(a) to (r)MADE

94For present purposes, the principles to be applied in deciding whetherrepresentations have been made on the available evidenceare substantiallysimilar to those which apply in deciding whether an imputation has beenconveyed by statements. This questionwas considered by Foster J inFAIGeneral Insurance Co Ltd v RAIA Insurance Brokers Ltd[1992] FCA 219;(1992) 108 ALR 479 at495-496. After referring toFarquhar v Bottom[1980] 2 NSWLR 380 at385-386 and to the decision of Wilcox J inTyping Centre of NSW Pty Ltd vNorthern Business College Ltd(1989) ATPR 40-943 at 50, 286, his Honouradopted the approach that the statements of principle in relation todetermining whether imputations reliedon arise from the material, areapplicable in relation to the question as to whether the representations whichare the same in substanceemerge from the material. I agree with thisapproach. His Honour's decision was upheld on appeal: seeRAIA InsuranceBrokers Ltd v FAI General Insurance Co Ltd[1993] FCA 92;(1993) 41 FCR 164. I willbriefly summarise the representations with a short comment in relation to eachof the applicants.

95The applicants have furnished detailed references to those parts of thebook, the article and the website, on the basis of whichit is said that thealleged representations were made. I have dealt in detail with the making andfalsity of these representationswhen discussing the identical defamatoryimputations against the applicants at pars [147] to [166] below. In summary Ihave foundthat all representations alleged against the first applicant weremade and that the representations alleged in relation to Santoand Donatellawere made in the material relied on with the exception of those in subpars14(k) and (l) in the case of Santo and insubpars 14(q) and (r) in relation toDonatella. I also find that the conduct of the respondents in relation tomaking such representationsis misleading and deceptive for reasons givenbelow.

REPRESENTATIONS CONCERNING THE VERSACE COMPANY

96Representations concerning the Versace company related to claims of criminalinvolvement by one or more Versace companies withthe Mafia, criminal moneylaundering, keeping secret ledgers evidencing illegitimate underworld dealing,associations with a mobster,blackmail and infiltration by organised crime. Atthe outset it should be noted that the respondents did not plead truth to anyof the representations. No attempt has been made to substantiate any of themas objective fact, apart from the alleged statementsof Gianni, which I havefound not to have been made. There is simply, therefore, no evidence before methat there is any truth inany of these representations. They have been deniedon oath by witnesses whose testimony was not shaken in cross-examination. Inaddition there was no documentary or other countervailing evidence.

97In essence, with no credible evidence having been presented to the Court inrespect of the accuracy or the correctness of theserepresentations against thecompany and in the light of the affirmative evidence to the contrary before meI find that the conductof Monte and Arkitude relating to the Versace companyis misleading and deceptive. It is of course no defence to the claims undertheTP Act and FT Act that the representations were believed to be true. Inany event, for reasons stated elsewhere in this judgment in relationto thedefamation claim, I have reached the conclusion that the respondents do nothave any reasonable or honest belief in the truthof these assertions.

SANTO VERSACE

98The substance of the representations made against Santo was that he wascriminally involved with the Italian underworld and launderedmoney forCalabrian organised crime, that he was reasonably suspected of murdering Gianniand that he was involved in maintainingsecret company ledgers that recordedtransactions with organised crime. I am satisfied by reference to variousparts of the evidenceoutlined by the applicants in relation to theserepresentations that representations to the above effect were made by therespondentsin the book, the article and on the website as alleged. Again, noevidence was furnished by Monte in an attempt to justify the truthof any ofthese representations. In fact he stated that he had never suggested orbelieved that any of the representations concerningSanto were true. Theapplicants' evidence, which was not weakened in any way under cross-examinationor by evidence to the contrary,was that there was no substance in any of theseallegations. Accordingly, I am satisfied that Monte's conduct in passing onandpublishing these representations was false and misleading conduct.

DONATELLA VERSACE

99I am satisfied that the representations alleged to have been made concerningDonatella were in fact made by the respondents,having regard to the evidenceand statements in the book, the article and on the website. These areidentical to those made againstSanto. Donatella denied the allegations andthis was supported by other witnesses called by her counsel. Her evidence wasnot shakenin cross-examination and I accept it. Monte claimed that therepresentations relating to Donatella being criminally involved withtheItalian underworld and maintaining company ledgers that recorded transactionswith organised crime, as well as Donatella beinginvolved in laundering moneyfor Calabrian organised crimes were objectively true. However, the otherallegations he said were false. In relation to those representations claimedto be true, he said that he based those on what he was told by Gianni,newspaper clippings,what he was told by journalists and other hearsayinformation. I have found that he was never told anything by Gianni because hehad no relationship with Gianni of any kind. There was no objective evidencethat any of the representations were in fact true. Evidence from the witnessescalled for by the applicants was to the effect that there is no substance inany of the representationsand on the evidence I find that the respondentsengaged in misleading and deceptive conduct in relation to theserepresentations.

TRADE OR COMMERCE

100Having found that Monte engaged in misleading or deceptive conduct thequestion in the application ofss 52 and53 of theTP Act and ss 42and 44 of the FT Act is whether the respondents' conduct was in trade orcommerce and what, if so, was the nature of thattrade and commerce? Thedefinition of "trade or commerce" ins 4 of theTP Act is that it is"trade or commerce within Australia or between Australia and places outsideAustralia". In the FT Act, "trade or commerce"is defined in s 4 asincluding "any business or professional activity".

In the construction of these provisions, one should not adopt preconceptionsabout what conduct is or is not. This was emphasisedby Fox J inBrown v JamFactory Pty Ltd[1981] FCA 35;(1981) 53 FLR 340 at 348, as follows:

"Section 52(1) is a comprehensive provision of wide impact, which does notadopt the language of any common law cause of action. Itdoes not purport tocreate liability at all; rather does it establish a norm of conduct, failure toobserve which has consequencesprovided for elsewhere in the same statute, orunder the general law. The possible width of its operation and the fact that itmayoverlap other sections ... is recognized by sub-s. (2). In my view effectshould be given to the ordinary meaning of the words used.They should not bequalified or (if it be possible) expanded, by reference to established commonlaw principles of liability."

The judgment of the High Court inConcrete Constructions (NSW) Pty Ltd vNelson[1990] HCA 17;(1990) 169 CLR 594 considered, at 602, that the words "trade" and"commerce", as used ins 52(1) of theTP Act, are "terms of commonknowledge of the widest import". Their Honours pointed out, however, that thereal difficulty with the constructionofs 52(1) does not concern the useof the words "trade or commerce", but rather the requirement that the relevantconduct is "in trade or commerce".Their Honours preferred the narrower of twoalternative constructions of this requirement (at 603-604):

"[I]n the context ofPt V of the Act with its heading `Consumer Protection',it is plain thats 52 was not intended to extend to all conduct, regardless ofits nature, in which a corporation might engage in the course of, or forthepurposes of, its overall trading or commercial business... What the section isconcerned with is the conduct of a corporationtowards persons, be theyconsumers or not, with whom it (or those whose interests it represents or isseeking to promote) has ormay have dealings in the course of those activitiesor transactions which, of their nature, bear a trading or commercial character.Such conduct includes, of course, promotional activities in relation to, orfor the purposes of, the supply of goods or services toactual or potentialconsumers, be they identified persons or merely an unidentifiable section ofthe public.In some areas, the dividing line between what is and what isnot conduct `in trade or commerce' may be less clear and may requiretheidentification of what imports a trading or commercial character to an activitywhich is not, without more, of that character."(Emphasisadded)

101Section 52 of theTP Act appears inPart V, which is headed "ConsumerProtection"; s 42 of the FT Act appears in Part 5, which is headed "Fairtrading". The FT Act also containsa broader definition of "trade or commerce"as compared to theTP Act. Nevertheless, it has been accepted that theprinciples laid down inConcrete Constructionsapply to the equivalentprovisions in the FT Act:Tobacco Institute of Australia Ltd v Woodward(1993) 32 NSWLR 559 at 572;Prestia v Aknar(1996) 40 NSWLR 165;Fasold v Roberts(1997) 70 FCR 489 at 528.

102Applying the principles ofConcrete Constructionto this case, thequestion is whether the conduct by Monte in preparing and publishing the bookfor commercial gain, and disseminatinginformation from the book and otherwisethrough the article and the website, constituted "conduct which is itself anaspect or elementof activities or transactions which, of their nature, bear atrading or commercial character".

103The whole of the conduct must be looked at in the context of the personconcerned. In this case, the conduct included the writingand dissemination ofthe book by Monte. Activity by one person might amount to activity in trade orcommerce while that same activityby another person would not: see Lindgren J(with whom Davies and Branson JJ agreed) inPlimer v Roberts(1997) 80FCR 303 at 327D-F, 328A-D; at first instance (Fasold v Roberts(1997) 70FCR 489 at 531);Dataflow Computer Services Pty Ltd v Goodman[1999] FCA 1625;(1999) 46IPR 393 at[18]. The intention of the person engaging in the activity is ofassistance in this regard:Firewatch Australia Pty Ltd v Country FireAuthority[1999] FCA 761;(1999) 93 FCR 520.

104There is no reason in principle that the making of representations by wayof a book or even an autobiography cannot be in tradeor commerce. InGlobal Sportsman Pty Ltd v MirrorNewspapers Ltd[1984] FCA 180;(1984) 55 ALR25, the Full Court found that s 52 applied to defamatory publication.Their Honours stated, at 29:

"There is no definable boundary between conduct which is misleading ordeceptive or likely to mislead or deceive and material whichis defamatory.Material which is defamatory does not fall outside the operation of s 52(1) ofthe Act merely for that reason anymore than it is brought within the operationof s 52(1) by reason only that it is defamatory. If the operation of s 52(1)was limitedto exclude material because it was defamatory, not only newspaperpublishers, but all corporations would be exonerated. Such a propositionwouldseverely restrict the broad generality of s 52(1) which has been emphasized bythe High Court on more than one occasion..."

105InConcrete Constructions, the High Court observed, at 604, thatpromotional activitiesin relation to the supply of goods and servicesconstitute conduct that usually bears a trading or commercial character.Monte's conductin writing and publishing the book was conduct in trade andcommerce in the sense that the publishing of a book for sale is an activityofan author of a commercial character. The publication on the website and of thearticle can also be viewed as promotional activitiesdesigned to increase salesof the book. The cover of the book was posted on the website and the book wasreferred to and quoted inthe article.

106Further, I consider that Monte's activities in the preparation andpublication of the book and in disseminating the book throughthe article andthe website, was conduct that was promotional in character in that theseactivities were undertaken to advance therespondents' business, MonteInvestigation Services, and to impress the image of Monte and his investigationservices generally onpublic awareness. Monte referred repeatedly in the bookto the importance of publicity to the private investigation business. Healsoemphasised, at 298, the forms his self-promotion may assume:

"Advertising takes many forms. I'm totally unashamed of the fact that Icourt the media: I issue press releases, I hire publicists,I cultivatecontacts in both tabloid and glossy publications. Publicity is crucial tobusiness. While to the outsider I might bepartying and trying to attract thepress, in reality I'm securing my next case."

107In cross-examination, Monte agreed that his investigative work and theselling of his book depended upon publicity and "wordof mouth". He agreedthat he would "encourage" publicity in order to advance his interests, that hewas "mindful" of marketing opportunities,and that he would seize anyopportunity should it present itself as being "advantageous" in order topromote his investigatory workand his writing work. In fact, Monte concededthat "publicity is the oxygen" on which he feeds for his work as an author andasa private investigator.

108I do not accept Monte's assertion that the various material posted on hiswebsite until at least the commencement of the hearingwas not "promotional"and that the matters complained of served solely or partly an informativepurpose. The website was used tofacilitate the sale of the book worldwide andto indicate that Monte Investigation Services was carrying on business in thecountriesor cities advertised on that website and to promote the servicesoffered by the business. As mentioned above, the website's domainname wasregistered at least until 29 July 2001, to Monte Investigation Group at its NewYork address. The administrative contactwas Monte. On the website's "homepage", as at 15 October 2001, there was a large photograph of Monte and anumber of differentlinks which led the visitor to the contact details of thefour global offices of Monte Investigation Services and to informationaboutthe nature and extent of work that had been done by Monte. There were also anumber of hyper-links designed to promote confidencein a business representedas endorsed by Monte and promotes itself on the basis of Monte's reputation.The representation is thatwhat appeared on the website was the type andstandard of service that could be obtained from the group and thisrepresentation turnson the personal services of Monte. The website, which isaccessible worldwide, directed visitors to the Yellow Pages advertisementforMonte Investigation Services, which had a photograph of Monte and a telephonenumber which remains the telephone number of thebusiness now conducted byArkitude. Monte's image, juxtaposed alongside many celebrities, permeated thesite. Monte agreed thatone purpose of the website was to procure business forthe Monte Investigation Group. The image of the book cover on the websitewasclearly designed, not only to promote book sales through the site, but also topromote Monte Investigation Services through thebook. In my opinion, thematerial posted on the website can be viewed generally as worldwide promotionalmaterial designed to promotethe respondents' commercial interests: seeGlorie v WA Chip & Pulp Co Pty Ltd[1981] FCA 224;(1981) 55 FLR 310.

109In summary, Monte's conduct in publishing the book and disseminating itscontents through the article and the website, was designedto enhance andpromote both Monte's commercial interests as an author and as a privateinvestigator and Arkitude's interest in MonteInvestigation Services. It wascarried out in trade and commerce within the meanings of theTP Act and the FTAct.

DOES MONTE CARRY ON BUSINESS AS A PRIVATE INVESTIGATOR?

110The respondents submitted that Monte was no longer in business as a privateinvestigator, although he testified that he continuedto hold a licence to workas a private inquiry agent in NSW. In cross-examination, Monte said that hehad not worked as a privateinvestigator since late 1998 and he described hisoccupation both in cross-examination and in his affidavits as an author andscriptwriter.The applicants claimed that Monte's evidence in relation to hisoccupation(s) and, in particular, his denials to being a privateinvestigatorafter 1998 were false and "made up for the purpose of strapping up a claimeddefence under s.65A of theTP Act and s.60 of the FT Act and of a claim thathis conduct is not in `trade or commerce'".

111The evidence indicated that, on or about 30 August 2001, after he was wellaware of these proceedings, Monte caused his son,James, to execute and send inthe appropriate form to effect his resignation as director of Arkitude(although Monte did not resignas secretary). The ASIC Historical Extract onArkitude records that the document notifying ASIC of the change of officeholderswas received on 3 September 2001 but that the form wasbackdatedto be effective as of 9 August 2001. It is noteworthy that the applicationinitiating this matter in the Federal Court was filedon 10 August 2001. Thebackdating is no mere coincidence. Monte remained the sole shareholder ofArkitude, despite denying thathe was aware that he was the beneficial owner ofall shares in Arkitude and claiming that he was no longer a shareholder and hadrecently transferred that interest. There was no documentary evidence of anysuch transfer. Further, according to his son James,Monte assisted in payingthe expenses of Arkitude and was responsible for instructing his solicitors onbehalf of Arkitude for thepurposes of these proceedings.

112The applicants also pointed to additional representations made by Monteduring 2000 and 2001 in which he held himself out tobe a private investigator.These included Monte's participation in an interview with the ABC'sWorldTodayon 7 June 2000, and an excerpt from the book (at 300) in which Montesays he was "trying to find thirty or forty quality staff inSydney to tide meover for the Olympics". Although Monte denied working as a privateinvestigator at the time, and said that hewas, rather, assisting James in therunning of Monte Investigation Services, he agreed that he was, at the time,performing functionsthat were "part and parcel" of the conduct of MonteInvestigation Services. This was quite inconsistent with his assertion thatheretired as a private investigator in 1998. James denied that he assisted hisfather in trying to locate the "thirty or fortyquality staff" referred toabove. Both Monte and James said in cross-examination that Arkitude is willingand able to carry on businessshould a client so require. In October 2001,Monte gave an interview for an article published inPenthouse Magazineabout himself and the book in which he held himself out to be practising asa private investigator. Even though Monte said that theinterview was given inMay 2001, this again was somewhat inconsistent with his supposed retirement ordisengagement from the privateinvestigation business in 1998. Further,despite his many denials that he no longer carries on business as a privateinvestigator,as recently as 6 July 2001, the applicants' solicitors receivedcorrespondence from Monte written on Monte Investigation Servicesand MonteInvestigation Group letterhead. In addition, the worldwide website, whichpromotes the services of Monte InvestigationGroup, also promotes Monte as aprivate investigator (and not as an author or scriptwriter).

113In the book itself, Monte suggested his continued participation in theprivate investigation business, at least up until about31 December 2000. Hestated, at 303:

"And my suitcase is always at the ready. We have dozens of jobsto attend to around the world - there's any number of directionsI could taketomorrow if I liked."

114In cross-examination, Monte described these statements as "poeticlicence". I do not accept this explanation.

115The only document produced by the respondents as evidence of income earnedby Monte as an author and scriptwriter was a chequefrom Pan Macmillan to thevalue of $5,000. Although the applicants requested in a notice to producedated 2 November 2001 that Monteproduce evidence of all income derived duringthe period January 2001 to date, Monte only produced a bundle of AutomaticTeller Machine("ATM") receipts. These showed a number of withdrawals as wellas the increases and decreases in funds and various account balancesof Monte'sbank accounts, but did not explain the source of over $130,000 worth ofdeposits between 15 March 2001 and November 2001. A possible inference thatmay be drawn from Monte's failure to produce documents evidencing the source ofthis income is that theincome was derived from his activities in relation toMonte Investigation Services or as a private investigator.

116Based on the cross-examination of James and Monte, ASIC records, thecontinued shareholding of Monte, the backdating of hisbelated "resignation" asa director (which I do not accept as reflecting the true, actual situation),and statements made by Montein media interviews, I am satisfied that Monteremains in control of Arkitude and has been so for all material times. Arkitudeissimply an avenue to give effect to Monte's decisions on matters relating tohis work. Monte agreed in cross-examination that hisimage is a "trade mark".Monte's name, photograph and reputation were clearly used to promote MonteInvestigation Services. He wouldbenefit from any business brought to Arkitudebecause he was (and continued to be at the time of the hearing) the soleshareholderof that company. I am satisfied therefore that Arkitude was privyto, and aided and abetted Monte in relation to his engagementin the false andmisleading conduct.

117Further, taking all of the above material into account, I am satisfied thatMonte's claims that he is and was during the relevantperiod, no longercarrying on business as a private investigator, are false.

INFORMATION PROVIDER

118Having found that Monte engaged in misleading or deceptive conduct in tradeor commerce and made false or misleading representations,the question arisesas to the applicability of s 65A of theTP Act and s 60 of the FTAct, both of which give protection to a "prescribed information provider". Thequestion is whether Monte and/orArkitude could be so described.

119Relevantly, s 65A provides as follows:

"65AApplication of provisions of Division to prescribedinformation providers

(1)Nothing in section 52, 53 ... applies to a prescribed publication of matterby a prescribed information provider, other than:

(a) apublicationof matterin connection with:

(i)the supply or possible supply of goods or services;

(ii)...

(iii)the promotion by any meansof the supply or use of goodsor services; or

(iv)...

where:

(v)thegoods orservices were relevantgoodsor services,or the interests in land were relevant interests in land, as the case may be,in relation to the prescribed information provider; or

(vi)...

(b) a publication of an advertisement.

(2)For the purposes of this section, apublicationby a prescribedinformation provideris a prescribed publication if:

(a)in any case -thepublication was madeby the prescribed information provider in thecourse of carrying on a business of providing information; or

(b)...

(3) In this section:

prescribed information provider means a person who carries on abusiness of providing information and, without limiting the generality of theforegoing, includes:

(a)the holder of a licence granted under theBroadcasting Services Act 1992;and

(aa) a person who is the provider of a broadcasting service under a classlicence under that Act; and

(ab)the holder of a licence continued in force bysubsection 5(1) of theBroadcasting Services (Transitional Provisions and Consequential Amendments)Act 1992; and

(b)the Australian Broadcasting Corporation; and

(c)the Special Broadcasting Service Corporation.

relevant goods or services, in relation to a prescribed informationprovider, meansgoods or services of a kind supplied by the prescribedinformation provideror, where the prescribed information provider is abody corporate, by a body corporate that is related to the prescribedinformationprovider." (Emphasis added)

120Section 60 of the FT Act is in identical terms, except for the numbersof the sections referred to in subs (1), which are, relevantly,ss 42 and44 in s 60(1) of the FT Act.

121Section 65A was introduced by the Federal Parliament (Statute Law(Miscellaneous Provisions) Act (No 2) 1984(Cth)) following the decision inAustralian Ocean Line Pty Ltd v West Australian Newspapers Ltd[1983] FCA 66;(1983) 47ALR 497 and[1985] FCA 37;(1985) 58 ALR 549 to the effect that newspaper reports were capableof breachings 52 of theTP Act if they were misleading or deceptive: see alsoGlobal Sportsman Pty Ltd v Mirror Newspapers Ltd[1984] FCA 180;(1984) 55 ALR 25. TheSecond Reading Speech provides some guidance as to the provision'sinterpretation, although no specific reference is made toauthors or publishersof books (either fiction or non-fiction). It indicates that s 65A isintended to operate to exempt the mediafrom actions brought unders 52,"which could inhibit activities relating to the provision of news and otherinformation ...". It reads:

"Recent decisions of the Federal Court have suggested that anewspaper publisher may be taken to have engaged in conduct that is misleadingor deceptive for the purposes ofsection 52 of theTrade Practices Act if thenewspaper contains inaccurate information.

The Government recognises the need to maintain a vigorous, free Press, aswell as an effective and enforceableTrade Practices Act. ... The Governmentalso recognises that the difficulties in this area are experienced not only bythe main newspaper, magazine andtelevision publishers, but also be a widerange of other people who provide information.

New section 65A will operate to exempt the media and other persons whoengage in businesses of providing information from the operationof thoseprovisions of Division 1 ofPart V of theTrade Practices Act which couldinhibit activities relating to the provision of news and other information. Theexemption is not available, however,in respect of publication of informationrelating to goods, services or land of a kind supplied by the informationrelating to goods,services or land where the publication is made pursuant to acontract, arrangement or understanding with a person who supplies goods,services or land of that kind or with a body corporate related to a bodycorporate that supplies such goods, services or land. These provisionsensure that information providers are not exempt from the consumer protectionprovisions of theTrade Practices Act in respect of the provision ofinformation where they have what might be regarded as a commercial interest inthe content of theinformation. In such cases, information providers must takethe same responsibility for the accuracy of information as any otherperson whopublishes information in trade or commerce. This can occur, for example, wherea newspaper has agreed to publish a `news'item about a product in exchange forthe product supplier taking out paid advertising in that publication."(Emphasis added)

122Wilcox J considered the application of s 65A inLovatt vConsolidated Magazines Pty Ltd(1988) 12 IPR 261 at 273: His Honour thereobserved:

"Put shortly, the intention of s 65A was to exclude theapplication of the specified provisions of the Act to ordinary items of newsand comment but to continue to subject the information provider to thoseprovisions in connection wth[sic]any items directly promotingthe supply of its own goods or servicesor the disposal by it of interestsin land.It was intended that, to the extent that an information provideruses its own publication to boost its own business, it should remainasamenable tos 52 as anyone else."(Emphasis added)

123In that case, which concerned the name of a crossword puzzle, under thetitle of "Super Colossus", his Honour expressed the viewthat s 65A didnot apply, because the use of the misleading title the "Super Colossus" inrelation to a magazine crossword puzzlehad no purpose other than to promotethe present and future sales of the respondents' magazine. Therefore, anyprotection affordedby s 65A was excluded by the exceptions ins 65A(1)(a). See alsoHorwitz Grahame Books Pty Ltd v PerformancePublications Pty Ltd(1987) ATPR 40-764 at 48, 275 andAdvanced HairStudio Pty Ltd v TVW Enterprises Ltd(1988) 77 ALR 615 at 620-624. In thelatter case, French J held that a television station broadcasting a segmentduring a current affairs programwhich was to include an interview with adissatisfied customer of the applicant was protected under s 65A becausethe broadcastingwas not in connection with the supply or possible supply ofrelevant services in relation to the broadcaster.

ARE MONTE OR ARKITUDE INFORMATION PROVIDERS?

124The respondents submitted that for the purposes of s 65A, a privateinquiry agent is an information provider within the meaningof the Act andrelied on the following statement which appeared at page 10 of the book:

"Corporate intelligence gathering best describes most of thework my company does - uncovering all types of information that peoplecan'tfind out for themselves."

125It is arguable that a private investigator may, in some circumstances,be an information provider in that he or she will sometimesbe employed byclients in order to obtain and provide certain information, which often isotherwise difficult to come by. InSykes v Reserve Bank of Australia(1997) 151 ALR 579 at 593, I considered that the Reserve Bank of Australiacould "accurately be described, in some respects, as a person carrying onabusiness of providing information". In that case I held that, in giving detailsof the introduction of a new series of polymerbank notes, the bank wasproviding information in the course of complying with its statutory obligation.However, as was noted inthat case, many of the Reserve Bank's otheractivities, of course, did not involve the "provision of information".Accordingly, theprovision of information in relation to one sector of abusiness does not mean that that the person or body corporate is an"informationprovider" for all purposes.

126The fact, for instance, that a private investigator in the case of somepublications, such as a report to a client, could literallybe said to provideinformation to his or her client, does not mean that the activities andpublications of that person or body areall "prescribed" publications withins 65A. Section 65A(2) states that a "prescribed publication" is apublication "made by the prescribedinformation provider in the course ofcarrying on a business of providing information". Primarily, the concept isdirected to mediaoutlets but the description is not limited to the media.Clearly, the publications complained of in this matter do not fall withinthisdefinition as they werenotmade in the course of any work by Monte in"providing information". Even if the book was considered to contain"information", whichin itself is doubtful, at least in the case of Gianni,where it was pure fabrication, the material can hardly be considered to havebeen given in the course of Monte's business as a private investigator.

127The respondents alternatively submitted that Monte is a prescribedinformation provider and the publications are prescribedpublications on thebasis that Monte is an author and scriptwriter and therefore in the business ofproviding information. It wasargued that, by writing and publishing the book,which was said to be autobiographical, Monte was providing information in thecourseof his business as an author.

128In support of this submission, the respondents emphasised Monte's contractwith Pan Macmillan to write the book pursuant towhich he was to receiveadvances and ten per cent of all sale proceeds, in addition to retaining thecopyright. There was also evidencethat Monte was in the process of writing twofurther books referred to earlier. In addition, Monte claimed that he hadwritten "twomajor film scripts entitled, `The Skull of Rockefeller' and `ThePrivate Eye' ... [which] have been offered to Hollywood producersforsubstantial fees".

129The respondents relied on the remarks of Rogers CJ in Comm D. inKrahe vFreeman(1988) ATPR 40-871. In that case, his Honour noted that the factthat the publication in question was the defendant's first book did not initself preventhim from being an information provider under the TPA.Krahewas concerned with an autobiography by a racing identity, Mr GeorgeFreeman, which was said to have made untrue, disparaging remarksabout theplaintiff's father, a police sergeant. In dismissing the application for aninterlocutory injunction, his Honour concludedthat the evidence relating tomisleading conduct was "somewhat slender"prima facieevidence. This isnot the case here. Importantly, his Honour also found that the damagecomplained of in that case had already beendone. Rogers CJ in Comm D. made nofinding on the question as to whether the defence of "information provider"could be made out. The circumstances in that case were quite different to thecircumstances before me.

130"Information", of course, is a term of broad meaning: seeSykes at592-594. It can embrace material which is essentially false and it may be thatby one isolated act of publishing a person engagesin carrying on a business ofproviding information. That will depend on the circumstances of the particularcase. At one end ofthe spectrum, for example, is perhaps a journalist who isor has been a foreign correspondent and who writes a book recounting factualexperiences over a long career. In publishing such a book the author may be an"information provider". On the other hand, an authorof work entirely offiction or fantasy might generally not be considered as providing"information". Monte's book, in relationto Gianni, is closer to the secondclassification than the first.

131I do not consider that the representations complained of in this case canproperly be characterised as "information". NeitherMonte or Arkitude can beconsidered as providing information. Not all writers or publishers are in thebusiness of providing "information",and Monte himself acknowledged that hisbook uses "poetic licence". Moreover, his reported description of the book as"a fast moving,fictionalised-type film" undermines any submission that theintent was for the provision of information, although he was reportedasindicating that this description did not mean that the contents of the bookwere not true.

132Mr Evatt, for the respondents, submitted that "[m]ost, if not allbiographies, blow the author's trumpet". That much may betrue, but taken as awhole, the book is, in this instance, at least as regards to Gianni, afanciful, fictitious account of Monte'salleged encounters and activities as aprivate investigator with Gianni. In my opinion, "information provider" is notan accuratecategorisation of the nature of the publication which, in relationto its account of the supposed relationship between Monte andGianni and theVersace allegations, is to be properly characterised as fictional and anexercise in self-promotion. In the ordinaryand natural understanding of theexpression "providing information", the representations in this case which werecomplained of donot involve the provision of information.

PROVISO TOs65A

133Even were it accepted, which it is not, that Monte is a prescribedinformation provider, it is clear that the provisos to s65A(1)(a) of theTP Act and s 60(1)(a) of the FT Act apply to the publications in question.Monte's publication of the book and the website, and his representationstoTheWeekend Australian, were in connection with the supply, orpromotion of the supply, of private investigation services and, or, theservices of Montehimself. As canvassed in the discussion above relating tos 52, the book, the article and the website were all publications inconnectionwith the supply of services or the promotion of the supply ofservices by Monte Investigation Services and Monte personally. Thepublicationswere not advertisements as such; they incorporated more "subtle" methods topromote the services of the respondents. They were designed to depict Monte inthe readers' eyes as a reputable and famous private investigator, knownthroughout the world. The book presented Monte as a private investigator tothe stars, who undertakes extraordinary work for extraordinary clients. Hisclaimed relationship with Gianni plays a central part in this self-promotionand was threaded prominently throughout the book. Itis calculated to attractcachetto the image of Monte as a consequence of his claimed associationwith a celebrity. The fact that much of this material was presentedunder theguise of a book, which in turn was portrayed as an autobiography, did notchange the essence of its inherent promotionalnature or the fact that it waspublished in connection with the supply or possible supply of the services ofMonte.

134The respondents made the following written submission in support of theircontention that the publication of the book was notconnected to the supply ofservices by Monte and Arkitude:

"If the book was concerned with the supply of services or anadvertisement (which it was not) it would be ineffectual to say the least.Thebook was to be published by Pan McMillan Australia Pty Limited in Australia andnew[sic] Zealand. The only two references to Mr Monte's Australasianoffices are on pages 160 and 163. Although Mr Monte mixes his tensesthereference on page 160 appears to say that he had an office. On 163 he refers tohis Australia Square office as being `in theseyears'. In any event theaddress, floor level, phone number, fax number, e-mail address, rates and hoursof business are not statedas would be expected for an advertisement for abusiness. There are some references to Mr Monte's office in the RockefellerCentre.This would not be of interest to would be clients among Australasianreaders. Again exact address, building number, floor level,phone number, faxnumber, e-mail number[sic], rates and hours of business are notstated."

135These remarks do not persuade me that the appropriate characterisationof the book is other than a self-promotional exercise. In fact, Monte himselfreferred to the ways in which he promoted himself by subtle means, such as thesponsorship of a children'swriting competition. In the book, Monte explainedthat television appearances, newspaper interviews and even attendances atsocialfunctions are important ways in which he attracted clients. I amsatisfied that the publication complained of was in connectionwith the supplyor possible supply and promotion of services of a kind supplied by Monte, touse the language under s 65A(1)(a) oftheTP Act and s 60(1)(a) ofthe FT Act.

136I am therefore satisfied that Monte or Arkitude are not within theprotection afforded to an "information provider" under eitherof the Acts.

SUMMARY

137On the evidence I am satisfied that except for those representationsalleged in subpars 14 (k), (l), (q) and (r), in relationto each of theapplicants, the representations alleged against them were made and conveyed. Iam also satisfied that there was nobasis in the evidence on which I can acceptor believe any of the representations which I have found to be made. I am alsosatisfiedthat they were made and passed on by Monte and Arkitude in breach oftheTP Act and the FT Act. They amounted to misleading and deceptive conductand contravened the provisions of those Acts as referred to inthe amendedstatement of claim.

INJUNCTIVE AND DECLARATORY RELIEF

138The evidence before the Court was that Monte intends to publish therepresentations and imputations complained of in the eventthat he is notrestrained by the Court from so doing. On a number of occasions outside theCourt he indicated that he will repeatthe allegations. This intention wasalso made clear in an article in theNew York Post,during an interviewon radio station2GB,in an interview with a reporter fromTheWeekend Australianand in a report of an interview with theIndependentNewsoutlet on 7 August 2001.

139In these circumstances I am satisfied that there is a real prospect thatthe allegations will be repeated by Monte and thisis a case in which havingregard to the damage suffered, injunctive relief ought be granted both againstMonte and Arkitude. Theprecise terms in which the relief is to be framed isto be settled after hearing submissions from the parties as to the precisewording. I am also satisfied that the applicants are entitled to appropriatedeclaratory relief in respect of the false allegations madeby Monte asoutlined below. Again, the precise terms of such declarations should be thesubject of Short Minutes and if necessarysubmissions by the parties.

DEFAMATION CLAIMS

140I am satisfied that in approximately June 2001, Monte gave his permissionfor the book to be made available to a journalistwithThe Australiannewspaper knowing that the newspaper would publish an article containingexcerpts from the book in advance of its public release inNew South Wales andother states and territories in Australia. The applicants' solicitors haveconfirmed that in so far as the defamationcounts are concerned, the applicantswill only rely on states and territories of the Commonwealth in relation to theissue of damages.

141I am satisfied that Monte caused the book to be published. I am alsosatisfied that Monte procured and authorised the publicationof the article inThe Weekend Australiannewspaper in New South Wales and other states andterritories of Australia. I am also satisfied that the publication of thematerialinThe Weekend Australianwas the natural and ordinaryconsequence of Monte's conduct in making the book available to thenewspaper.

142Section 9 of theDefamation Act 1974 (NSW) provides:

"9 Causes of action

(1)Where a person publishes any report, article, letter, note, picture,... or other thing, by means of which ... and its publication,the publishermakes an imputation defamatory of another person, whether by innuendo orotherwise, then for the purposes of this section:

(a)that report, article, letter, note, picture, oral utterance or thingis amatter, and

(b)the imputation is made by means of the publication of thatmatter.

(2)Where a person publishes any matter to any recipient and by means ofthat publication makes an imputation defamatory of another person,the persondefamed has, in respect of that imputation, a cause of action against thepublisher for the publication of that matterto that recipient:

(a)in addition to any cause of action which the person defamed may haveagainst the publisher for the publication of that matterto that recipient inrespect of any other defamatory imputation made by means of that publication,and

(b)in addition to any cause of action which the person defamed may haveagainst that publisher for any publication of that matterto any otherrecipient.

..." (Emphasis in original)

IMPUTATIONS

143The cause of action unders 9(2) is the imputation conveyed by thematerial complained of and not the material complained of itself. A personwill establish a causeof action in defamation if the meaning of the wordscarry a defamatory imputation or meaning and the matter is capable ofidentifyingthe person in circumstances where the matter has been communicatedto at least one other person.

144For present purposes the principles which apply in relation to the questionas to whether the matter complained of is capableof conveying the pleadedimputation and whether it carried that imputation were summarised recently inAmalgamated Television Services Pty Ltd v Marsden[1998] NSWSC 4;(1998) 43 NSWLR 158 byHunt CJ at CL (with whom Mason P and Handley JA agreed) at 165-167, where hisHonour said:

"The ordinary reasonable meaning of the matter complained of maybe either the literal meaning of the published matter, or what isimplied bythat matter, or what is inferred from it: ... In deciding whether anyparticular imputation is capable of being conveyed,the question is whether itisreasonablyso capable (Defamation Act,s 7A, reflecting thecommon law: ...), and any strained or forced or utterly unreasonableinterpretation must be rejected: ... The ordinaryreasonable reader (orlistener or viewer) is a person of fair average intelligence ..., who isneither perverse ..., nor morbid orsuspicious of mind ..., nor avid forscandal: .... That person does not live in an ivory tower but can and does readbetween thelines in the light of that person's general knowledge andexperience of worldly affairs: ...

The mode or manner of publication is a material matter in determining whatimputation is capable of being conveyed: ... The readerof a book, for example,is assumed to read it with more care than he or she would read a newspaper. Themore sensational the articlein a newspaper, the less likely is it that theordinary reasonable reader will have read it with the degree of analytical carewhichmay otherwise have been given to a book ..., and the less the degree ofaccuracy which would be expected by the reader: ... The ordinaryreasonablereader of such an article is understandably prone to engage in a certain amountof loose thinking:... There is a widedegree of latitude given to the capacityof the matter complained of to convey particular imputations where the wordspublished areimprecise, ambiguous, loose, fanciful or unusual: ...

What must be emphasised is that it is the test of reasonableness whichguides any court in its function of determining whether thematter complainedof is capable of conveying any of the imputations pleaded by the plaintiff. Indetermining what is reasonable inany case, a distinction must be drawn betweenwhat the ordinary reasonable reader, listener or viewer (drawing on his or herownknowledge and experience of human affairs) could understand from what thedefendant has said in the matter complained of and theconclusion which thereader, listener or viewer could reach by taking into account his or her ownbelief which has been excited bywhat was said. It is the former approach, notthe latter, which must be taken: .... The publisher is not held responsible,for example,for an inference which the ordinary reasonable reader, listener orviewer draws from an inference already drawn from the matter complainedof,because it is unreasonable for the publisher to be held so responsible:... Thatis an issue which has assumed some importancein this case.

It is necessary to emphasise the important distinction between animplication and an inference. An implication is included in andis part of thatwhich is expressed by the publisher. It is something which the reader (orlistener or viewer) understands the publisheras having intended to say. Aninference is something which the reader (or listener or viewer) adds to what isstated by the publisher;it may reasonably or even irresistibly follow fromwhat has been expressly or impliedly said, but it is nevertheless a conclusiondrawn by the reader (or listener or viewer) from what has been expressly orimpliedly said by the publisher: ... It is the reader's(or listener's orviewer's) own conclusion. ...

An inference is drawn from an inference when the reader, listener orviewer draws an inference which is available in the matter complainedof andthen uses that inference as a basis (at least in part) from which a furtherinference is drawn. The publisher is held responsiblefor the first of thoseinferences but not for the second because - as I have already said - it isunreasonable for the publisherto be held so responsible. InMirrorNewspapers Ltd v Harrison(at 300), the High Court illustrated the processwhich leads to an inference upon an inference in the case where the mattercomplainedof states that the plaintiff had been charged with an offence. Thefirst inference available from that statement (for which the publisher isheld responsible) is that the police believed the plaintiff to be guilty orhad a ground for charging him. ... The second inference,which is based atleast in part upon that first inference (and thus isnotone for whichthe publisher is held responsible because it is unreasonable to do so), is thatthe plaintiff is in fact guilty of theoffence charged. ... That requirement ofreasonableness must apply in every case. There can, however, be nounreasonableness involvedin making the publisher responsible for an inferencedrawn by the reader (or listener or viewer) from a statement which thepublisheris reasonably understood to have intended to imply in the mattercomplained of."(Emphasis in original)

145In determining what will be conveyed to an ordinary reasonable reader,listener or viewer of fair average intelligence, onemust not look at thestatement or matters complained of in isolation. Rather, they must beconsidered in the whole context of thematerial in which they are published:John Fairfax & Sons Ltd v Hook[1983] FCA 83;(1983) 72 FLR 190 at 195. Thereference to the "context" of the publication is a broad reference whichembraces all the attendant circumstances, includingboth the surrounding matterand the mode of publication. In the context of the book in the present matter,the assertions in questionare advanced as statements of reported fact and notas expressions of opinion or comment. When considering whether an imputationis raised in the present case it is necessary to consider the cumulative effectof the references in the evidence as opposed to relyingon selected passages inisolation. The context in the present case in which it is alleged theimputations arise is in relation tospecific pages and paragraphs of the bookand the article.

146Having regard to these principles I now turn to the question as to whethereach of the allegations raised against the respondentswas made.

IMPUTATIONS AGAINST VERSACE SpA

147It is not necessary to canvass in detail each specific reference in thebook or the article. However, in the case of the contestedimputations, I willbriefly set out the approach I have taken in considering whether they could beand are conveyed.

148Counsel for the respondents did not dispute that the imputations alleged insubpar 27(a) of the amended statement of claim wascapable of being conveyedand is conveyed by the book. The imputation conveyed is that the firstapplicant was criminally involvedwith the Mafia.

149In subpar 27(b) the imputation pleaded is that the company "for years hadbeen laundering millions of `dirty' dollars for Calabrianorganised crime".The book referred to a statement, allegedly by Gianni, "that what the ledgersreveal is that over the course ofseveral years he [Gianni] has been launderingmillions of `dirty' dollars for Calabrian organised crime", (at 73). Later inthebook, the author stated that, if what Gianni told him is true, "the missingledgers, which show the real financial position and bribesof Gianni Versace,are a time bomb which can blow Versace's business and all its occupants skyhigh". This was also referred toin the article. The expression "Versace'sbusiness" in this context conveys the meaning that the fashion business of theparentcompany is likely to be destroyed or severely damaged as a result of theledgers showing its dealings with Calabrian organised crime.There were anumber of other pieces to the mosaic which together with these referencessatisfy me that this imputation is made outand is conveyed.

150Subparagraph 27(c) referred to an imputation that the company "maintainedsecret ledgers that recorded it had been dealing withthe Italian underworld".The reference to "Versace's business" above is a reference to the business ofthe first applicant. Theledgers also referred to above, are those that aresaid to record the true financial position of the business, which obviouslypointsto the fashion business carried on by the company. Assertions in thebook stated that these ledgers were "highly sensitive" (at13), "top-secret"(at 72) and, with the exception of the first respondent, known to only Gianni's"inner circle" (at 35). Therewas also reference in the book to "[t]he Mob"pumping "cash into Gianni's accounts disguised as sales revenue" in order to"laundertheir black money through some legitimate vehicle" (at 98). The onlyvehicle that this could refer to is the company which is carryingon thefashion business. The article inThe Weekend Australian also referredto the company and the secret ledgers in stating that "`Johnny the Cat' fromMilan had stolen five secret ledgers fromthe company and was asking $US 5million to return them". Clearly this imputation is made out as the statementsconvey that thefirst applicant had maintained secret ledgers that recorded itsdealings with "the Mob", or Italian underworld.

151In subpar 27(d) the imputation claimed by the applicants is that thecompany "was associated with a mobster from Milan called`Johnny the Cat'". Thebook alleged that "Johnny the Cat", whose real name is Guglliermo Gattorini,was a former Versace employeewho "had stolen some highly sensitive ledgersfrom the business" and had been trying to extort $US one million per ledgerfrom Giannifor their return (at 13 and 72). It is said that "Johnny the Cat"was "offered a huge sum for their [the ledgers'] return" (at 14). Thesuggestion is that the Versace business offered the money. These statementsconvey an alleged dealing or association betweenthe company, whose ledgersthey are, and "Johnny the Cat". The book referred to "Johnny the Cat" as anextortionist (at 13). Elsewherein the book, Monte opines and thereby plantsthe suggestion that "Johnny the Cat" could be "a frontman for some organisedcrime rivalsof Gianni's associates" (at 73). In my view, the imputationalleged in subpar 27(d) is made out and conveyed by the statements reliedon.

152The imputation alleged in subpar 27(e) is that the company "was beingblackmailed because of its criminal involvement with theItalian underworld".As outlined above, the book referred to the ledgers being "highly sensitive"(at 13) and having been taken "fromthe business"(at 13). It stated that"Johnny the Cat" was attempting to extort $US five million for their return,"[a] million foreach ledger" (at 72) and that he had been "offered a huge sumfor their return" (at 14). The imputation is clearly made out andconveyed bythe above references and also by references throughout the book to "the Mob"having a motive to murder Gianni due tothe existence of the ledgers and theirlaundering of `dirty' money through Gianni's business. Similarly, as alludedto above, thearticle stated that "`Johnny the Cat' had stolen five secretledgers from the company and was asking $US 5 million to return them. [Gianni]could not go to the police because it would reveal that for years, he had beendealing with the Italian underworld".

153The imputation claimed in subpar 27(f) is that the `company' "had beeninfiltrated by organised crime". The reference to thefirst applicant, which isa corporation, is effectively a reference to the "company" or "business" ofGianni. In my view, referenceto the word "company" in the materials complainedof, including both the book and the article, is synonymous with reference to"thebusiness" of Gianni, namely the company fashion business. The book madereference to "Mafia-style involvement in Gianni's affairs"(at 168), "amoney-laundering operation inside his [Gianni's] business affairs" (at 157),and "over the course of several years [Gianni]... laundering millions of`dirty' dollars for Calabrian organised crime" (at 73). These referencesconvey an "infiltration" orclose involvement by the Mafia in the affairs ofGianni's business, which was being used to serve the Mafia's own purposes. AsGianniwas the symbol or figurehead of the Versace company or fashion house,references to Mafia involvement in "Gianni's affairs" and Gianni's"businessaffairs" clearly convey the imputation that the "company" has been infiltratedby organised crime. That much is exemplifiedby the book's reference to "blackmoney" being laundered "through some legitimate vehicle" (at 98). Again, thereference to "vehicle"is to a business entity rather than to an individual.

154Furthermore, the imputation is conveyed in the article which referred to"secret ledgers" being stolen from the "company" andto the ledgers revealingthat, "over the course of several years", Gianni had "been laundering millionsof `dirty' dollars for Calabrianorganised crime". I am satisfied that theinference to be drawn from these references is that Gianni and the company werebeholdento organised crime and were laundering money to serve the purposes of"Calabrian organised crime".

IMPUTATIONS AGAINST SANTO AND DONATELLA VERSACE -- IDENTIFICATION

155In relation to Santo it was not contested that the imputation alleged insubpar 28(a) of the amended statement of claim wascapable of being conveyedand was conveyed in the book. That was to the effect that Santo was criminallyinvolved with the Mafia. The pleaded imputations relating to Santo andDonatella were in some cases identical to those made against the company. Inparticular,the same imputations were pleaded with respect to the applicants'alleged involvement with the Italian underworld, the "launderingof millions of`dirty' dollars for Calabrian organised crime", and the maintenance of secret"ledgers that recorded transactionswith organised crime": subpars 28(a), (b),and (d) and 29 (a), (b) and (d). In relation to these imputations only, thematerialcontained no direct statements against Santo and Donatella thatactually name them. However, in this context, the book did referto "Versace'sbusiness" (at 99), Gianni's "affairs" (at 157, 168 and 183), Gianni's "businessaffairs" (at 157), "his [Gianni's]business" (at 240), "the House of Versace"(at 157 and 182), and "others he [Gianni] was closely associated with" (at157). Thearticle did not name the second and third applicants at all, but itreferred to "the company", "the House of Versace and all itsoccupants" and"his [Gianni's] business" in the context of its references to the secretledgers and the laundering of money for theItalian underworld, and thespeculation as to the family being suspected in the murder, a clear referenceto Santo and Donatella.

156In relation to Santo and Donatella, the respondents submitted that becausethe applicants were not named in the article, itis necessary to satisfy theCourt that the imputations would be conveyed to the ordinary reasonable readerwho had knowledge thatthe article referred to the applicants. The respondentsreferred to the statement by Isaacs J inDavid Syme & Co v Canavan[1918] HCA 50;(1918) 25 CLR 234 at 238, where his Honour formulated the test foridentification as follows:

"The test of whether words that do not specifically name theplaintiff refer to him or not is this: Are they such as reasonably inthecircumstances would lead persons acquainted with the plaintiff to believe thathe was the person referred to? That does not assumethat those persons who readthe words know all the circumstances or all the relevant facts. But althoughthe plaintiff is not namedin words, he may, nevertheless, be described so asto be recognized; and whether that description takes the form of a word pictureof an individual or the form of a reference to a class of persons of which heis or is believed to be a member, or any other form,if in the circumstancesthe description is such that a person hearing or reading the alleged libelwould reasonably believe thatthe plaintiff was referred to, that is asufficient reference to him."

157Counsel for the respondents conceded that the references to Gianni'sfamily would relate to his brother and sister. The articlereferred to theHouse of Versace but it was said that the class denoted by this description istoo wide to sufficiently identifywith precision Donatella and Santo as opposedto any other employee in the business. Counsel referred to the decision inKnupffer v London Express Newspaper Ltd[1944] UKHL 1;[1944] AC 116 at 121, whereViscount Simon LC said that the task of the Court in the identification ofpersons claiming to be defamed, is as follows:

"There are two questions involved in the attempt to identify the[applicants] as the person[s] defamed. The first question is a questionof law- can the article, having regard to its language, be regarded as capable ofreferring to the [applicants]? The second questionis a question of fact - Doesthe article, in fact, lead reasonable people, who know the [applicants], to theconclusion that it doesrefer to [them]?"

158Alternatively it was said that the reference to the "the House ofVersace and all its occupants" in the article "would probablyrefer to all thesenior staff and executives including Donatella and Santo" and this class istoo large to sustain a defamation actionfor any individual member of theclass. In my view, the decision inKnupfferis distinguishable becauseit was based on the generalised nature of the words complained of. TheirLordships found that in thatcase, the words contained nothing that wouldenable anyone to identify any person as being a member of the body referred to.In thepresent case, on the basis of ordinary English understanding and usage,the expression "house" particularly in the context of clothingand fashion,would include a fashion house orhaute couturebusiness.

159The expression "fashion house" is a basic English expression: see theNew Shorter Oxford Dictionary1993, where the definition of "house"includes "[a] place of business; a business establishment, a firm;spec.a printing or publishing firm,a couture or fashion establishment"(emphasis added). Under the definition of "fashion", the dictionary refers tothe usage of the expression "fashion" in the contextof "fashion house", andrefers to "a business establishment displaying and selling high-qualityclothes".The Macquarie Dictionary, 2nd ed. 1995, defines the expression"fashion house" as an expression in its own right to mean "a firm which designsand manufacturesfashionable clothing primarily for the very rich". Theexpression is frequently used in relation to prestigious enterprises.

160In my opinion a reference to the House of Versace or to the Versacebusiness and all its occupants is sufficient to impute thatSanto and Donatellawere involved in the activities alleged, particularly given their high personalprofile and active, high levelmanagerial and creative roles in relation to theVersace name and business and the fact that they alone, as distinct from otheremployees,bear the Versace name, as does the first applicant. In addition,there was evidence from Anne Jamieson, a senior manager of the"PalazzoVersace" on the Gold Coast that references to the House of Versace would bereferences to Donatella and Santo. In the circumstancesI am not persuadedthat there is any material distinction between a reference to the "Versacebusiness" and the reference to the"House of Versace" and its occupants. I donot accept the submission that the reference to the House of Versace or to theVersacebusiness is to such a large group of directors, managers, senior staffofficers and general employees as to be too wide to supporta submission thatthey have been sufficiently identified and defamed and that the group is toowide.

161For these reasons I am satisfied that the imputations charged in subpars(a), (b) and (d) of pars 28 and 29 of the amended statementof claim have beenmade and conveyed in relation to Donatella and Santo.

162I am also satisfied that the very grave imputations raised against Santoand Donatella in subpars 28(c) and 29(c), namely, thatthey were said to bereasonably suspected of murdering their brother, are capable of being and arein fact conveyed. At this pointit should be borne in mind, that there was nobasis in the evidence before me on which to claim the truth or accuracy of thisimputationand that Monte has previously stated that he did not suggest thatthis imputation was true, nor did he express any honest beliefin its truth.

163The contentions of the respondents in relation to the imputations insubpars 28(c) and 29(c) was that they had not been madeout on the materialcomplained of because the material only suggested the murder of Gianni by hissiblings as a "possibility" andnot as something that could be suspected onreasonable grounds. The difficulty with the respondents argument on thisaspect is thatwhen speaking of Gianni's murder in the book, Monte stated (at240):

"In whose interest is it to have Versace dead? The family, whoare fighting with him and who, apart from anything else, stand togain twentymillion dollars in keyman insurance? The Italian criminals that have beenlaundering money through his business? OrAndrew Cunanan?"

164A question can be capable of conveying an imputation, particularly as inthe present case, when coupled with a suggested answerand alleged grounds: seeTruth (NZ) Ltd v Bowles[1966] NZLR 303;Lewis v Daily Telegraph Ltd[1964] AC 234. The damage lies in the innuendo and the inference invited.On a fair and reasonable reading of the above quote from the book, thereis anassertion that there were reasonable grounds based on motivation to "suspect"Santo and Donatella Versace were involved inthe murder of their brother. Theimputation is not that they were guilty but that they could be reasonablysuspected of being guiltyof Gianni's murder. The reference to "family" canonly be a reference to them. The suggested motives are spelt out. It isapparentthat an objective reasonable reader could fairly understand that themeaning conveyed is that there were reasonable grounds or motivesfor them tomurder their brother and that this is an available conclusion. Accordingly, inmy view, this imputation is made andis conveyed against the second and thirdapplicants. There was no evidence before me as to the insurance money or ofthe launderingof money and the evidence indicated that the family members werenot fighting among one another.

165I do not think the alleged imputations against Santo and Donatella, insubpars 28(e) and (f) and 29(e) and (f) of the amendedstatement of claim, aremade or conveyed by the material complained of. This is because subpars 28(e)and 29(e) alleged the imputationthat Santo and Donatella, respectively, werereasonably suspected of murdering Gianni in order to conceal that they wereengagedin criminal activity. It is this specific attribution of precisepurpose which in my view is not conveyed by the material referredto. Inrelation to subpars 28(f) and 29(f) I do not consider that the imputation ismade on the material, that Santo and/or Donatellawere being blackmailed by amobster. The material referred to by the applicants is not capable ofconveying and does not conveythose imputations when read fairly and in lightof all the references relied on, although the specific imputation was made outasagainst the company.

166My conclusions in relation to the imputations are that, with respect to thebook, I am satisfied that all the imputations allegedin pars 27, 28 and 29 ofthe amended statement of claim are made and conveyed in relation to theapplicants as alleged, with theexceptions of subpars 28(e) and (f) and 29(e)and (f). In my view, the article conveyed the imputations set out in subpars27(a),(b) (c), (e), (f) and 28(a), (b) and (d) and 29(a), (b), and (d). Inrelation to subpars 28(c) and 29(c), although there is referenceto the Versacefamily being among the suspects, the article did not itself refer to thegrounds or basis for that charge.

THE IMPUTATIONS ARE DEFAMATORY

167In considering earlier the representations made I concluded that they werefalse and misleading. For the same reasons I findthat the imputations madeout are false and misleading on the evidence before me. Having ascertainedwhat imputations are conveyedby the matter in question, I am satisfied thatthose imputations found to be conveyed are defamatory.

168The respondents denied that the imputations pleaded are capable of beingdefamatory or are defamatory of any of the applicants.An imputation isdefamatory if it tends to produce an adverse reaction in a hypotheticalaudience of ordinary reasonable people. InGardiner v John Fairfax &Sons Pty Ltd[1942] NSWStRp 16;(1942) 42 SR (NSW) 171, Jordan CJ stated, at 172, that:

"In New South Wales as a general rule it is illegal, under thelaw of defamation, to publish about a person anything which is likelyto causeordinary decent folk in the community, taken in general, to think the less ofhim."

169InMirror Newspapers Ltd v World Hosts Pty Ltd[1979] HCA 3;(1979) 141 CLR632, Mason and Jacobs JJ noted, at 638, that in defamation proceedings:

"[T]he plaintiff had to prove at common law that the defendantpublished to a third party a statement about the plaintiff of a kindlikely tolead the recipient as an ordinary person to think the less ofhim."

It can be seen from the above statements that it is not necessary to identifythe precise feelings which the matter engenders inorder to characterise thematerial as "defamatory". It is sufficient if the imputation tends to producean unfavourable reactionin the reasonable reader.

170It is evident that all the imputations conveyed in this case, includingthose to the effect that the first, second and thirdapplicants were criminallyinvolved with the Mafia and in the laundering of millions of `dirty' dollarsfor Calabrian organised crime,that the company was being blackmailed, and thatSanto and Donatella were reasonably suspected of murdering Gianni, are highlydefamatoryin nature to the ordinary reasonable person, based on the test citedabove. The imputations are clearly of the gravest and mostdamaging nature.Each of them is defamatory of the applicants.

DEFENCES

171The respondents did not rely on the defence of truth available underss 14-16 of theDefamation Act. In oral submissions, Mr Evatt for therespondents confirmed that his clients did not plead the defence of truth toeither the defamatoryimputations or the Trade Practices claim. Therespondents' case was not that any of the imputations conveyed were true butratherthat Monte had an honest and reasonable belief in respect of anyimputations and representations found by the Court to have beenmade and to bedefamatory, that they were true.

QUALIFIED PRIVILEGE

172The respondents relied on a defence of qualified privilege both statutoryand at common law.

173Qualified privilege at common law requires that the communicator have aninterest, or a duty, legal social or moral, to makethe communication to theperson to whom it was made and the person to whom it was made has acorresponding reciprocal interest orduty to receive it. It is ordinarily nota defence available to media defendants:Morosi v Mirror Newspapers Ltd(1977) 2 NSWLR 749 at 772 ff. In the present case Monte did not have anyrelevant duty or interest of this nature.

174Statutory qualified privilege is provided for ins 22 of theDefamation Act. This is set out as follows:

"(1)Where, in respect of matter published to any person:

(a)the recipient has an interest or apparent interest in having information onsome subject,

(b)the matter is published to the recipient in the course of giving to himinformation on that subject, and

(c)the conduct of the publisher in publishing that matter is reasonable in thecircumstances,

there is a defence of qualified privilege for that publication.

(2)For the purposes of subsection (1), a person has an apparent interest inhaving information on some subject if, but only if,at the time of thepublication in question, the publisher believes on reasonable grounds that thatperson has that interest.

(3)Where matter is published for reward in circumstances in which therewould be a qualified privilege under subsection (1) for the publicationif itwere not for reward, there is a defence of qualified privilege for thatpublication notwithstanding that it is for reward."

175The relevant approach for present purposes for a determination of thisquestion is that prescribed by Hunt A-JA inMorgan v John Fairfax & SonsLtd (No 2)(1991) 23 NSWLR 374 at 387-388:

"(1) The conduct must have been reasonable in the circumstancesto publish each imputation found to have been in fact conveyed bythe mattercomplained of.The more serious the imputation conveyed, the greater theobligation upon the defendant to ensure that his conduct in relation toit wasreasonable. Of course, if any other defence (such as truth or comment) hasalready been established in relation to any particular imputationfound to havebeen so conveyed, it is unnecessary to consider the reasonableness of thedefendant's conduct in relation to the publicationof that particularimputation.

(2) If the defendant intended to convey any imputation in fact conveyed,he must(subject to the exceptional case discussed inBarbaro'scase, and perhaps also that discussed inCollins v Ryan)havebelieved in the truth of that imputation.

(3) ...

(4) Thedefendant mustalsoestablish:

(a)that, before publishing the matter complained of, he exercisedreasonable care to ensure that he got his conclusions right, (whereappropriate)by making proper inquiries and checking on the accuracy of hissources;

(b)that his conclusions (whether statements of fact orexpressions of opinion) followedlogically, fairly and reasonably from theinformation which he had obtained;

(c)that the manner and extent of the publication did not exceed whatwas reasonably required in the circumstances; and

(d)that each imputation intended to be conveyed was relevant to thesubject about which he is giving information to his readers.

The extent to which the inquiries referred to in par (4)(a) should have beenmade will depend upon the circumstances of the case, in particular thenature and the source of the informationwhich the defendant has obtained,andwhether the position, standing, character and opportunities of knowledgeof the informant (as perceived by the defendant himself)are such as tomake his belief in the truth of that information a reasonable one:.... Itis necessary to keep in mind that each of the matters referred to in par (4)are relevant to the reasonableness of the defendant'sconduct; they do notraise questions independently of that issue...

Bearing in mind the precept of the Privy Council in Austin v Mirror NewspapersLtd (at 360) that it would be impossible to giveany comprehensive definitionof what conduct will be held to be reasonable in the circumstances, and that itwould be most unwiseto attempt to do so, the above propositions do not purportto be exhaustive." (Emphasis added)

176For reasons given earlier I have concluded that the conversations andmeetings between Gianni and Monte never took place and thathis claims to haveany relationship with Gianni are mere fabrications. It was submitted that evenon these findings it would beopen to the Court to find that it was reasonablefor Monte to publish the imputations found to have been conveyed and reliancewasplaced on the reasons of Lord Diplock inHorrocks v Lowe[1975] AC135 at 150 as follows:

"... what is required on the part of the defamer to entitle himto the protection of the privilege is positive belief in the truthof what hepublished or, as it is generally though tautologously termed, `honest belief.'If he publishes untrue defamatory matter recklessly, without considering orcaring whether it be true or not, he is in this, as inother branches of thelaw, treated as if he knew it to be false. But indifference to the truth ofwhat he publishes is not to be equated with carelessness, impulsiveness orirrationality in arrivingat a positive belief that it is true. The freedom ofspeech protected by the law of qualified privilege may be availed of by allsorts and conditions of men.In affording to them immunity from suit if theyhave acted in good faith in compliance with a legal or moral duty or inprotectionof a legitimate interest the law must take them as it findsthem. In ordinary life it is rare indeed for people to form their beliefsby a process of logical deduction from facts ascertained bya rigorous searchfor all available evidence and a judicious assessment of its probative value.In greater or in less degree accordingto their temperaments, their training,their intelligence, they are swayed by prejudice, rely on intuition instead ofreasoning,leap to conclusions on inadequate evidence and fail to recognise thecogency of material which might cast doubt on the validity ofthe conclusionsthey reach. But despite the imperfection of the mental process by which thebelief is arrived at it may still be`honest,' that is, a positive belief thatthe conclusions they have reached are true. The law demands no more."(Emphasis added)

177In my view, in the present case the publication by the respondent isproperly characterised as untrue defamatory matter publishedrecklessly withoutconsidering or caring whether it be true or not, such that the publication isnot the truth of what is published.

178In his affidavit Monte stated that hebelieved that therepresentations conveyed by the book and the imputations conveyed by thearticle were true. He also stated that the representationsand imputationsconveyed by the book and the article were honest comments which he believed hewas entitled to make. Notwithstandingthis, in cross-examination, Monte didnot assert thatany of the imputations allegedly conveyed against thecompany and Santo were true. His testimony was that, in relation to theimputationsalleged in subpars 27(a), (b), (c), (d), (e), (f) and 28(a), (b),(c), (d), (e) and (f), he did not know one way or the other whetherthey were,as a matter of fact, true or false. He said that he had not investigated themand had not intended to convey them inhis book. In respect of the imputationsconveyed against Donatella, Monte did not assert the truth of subpars 29(c),(e) and (f). He did, however, submit that he had reasonable grounds to assertthe truth of the imputations alleged in subpars 29(a), (b) and(d). In myview, he did not have any such grounds in the light of the rejection by theCourt of any association with Gianni.

179In the present case I do not consider that the action of Monte inpublishing the material was reasonable. He made no inquiriesas to theobjective truth of any of the allegations and made not attempt to furnish anyevidence in relation to it, either oral ordocumentary. The allegations wereextremely grave and reasonable conduct would require some investigation beforepublication. Hemade some general inquiries with the police in Miami andcollected gossip and rumours from a number of media sources which were notsubstantiated in any objective way and repeated them without verification. Hefabricated a non-existent relationship with Gianni. He could not point to anycredible documentary evidence to support any allegation and I have found thathe fabricated some of thedocumentary material he relied on. He failed torefer to the reversal of the conviction of Santo Versace on appeal and he madealarge number of grave, unsubstantiated, and sensational allegations againsteach of the applicants without any foundation. In thecase of Donatella andSanto this was done with malice in publishing the material. Accordingly, thedefence based on qualified privilegehas not been made out.

COMMENT

180Monte relied on the defence of comment unders 32 of theDefamationAct. To make out this defence it is necessary that the comment be based eitheron proper material for comment or to some extent on suchmaterial.

181Monte submitted that such proper material is found in the allegedconversations which he had with Gianni. Inquiries made toknowledgeable andreputable journalists were also relied on together with various newspaperarticles in evidence and some other generalinquiries which were referred to inbroad terms.

182Because I have held that the conversations with Gianni did not take place,this basis for comment does not exist. The newspaperarticles so far asrelevant simply generate and recirculate rumours, speculation and gossip aboutthe applicants, without providingany evidentiary factual basis. Inquiries madeof so called reputable and knowledgeable journalists do not elevate the gossip,inthe absence of any tangible, factual supporting material, to the level ofproper material for comment. This material has not beenshown to be a matterof any substantial truth or indeed of any truth.

183It is also important to take into account, when considering the defence ofcomment, that most, if not all, of the allegationsmade by Monte, were providedas statements of fact, what Monte had been told by Gianni, not as matters ofcomment. There wassomespeculation as to what may have happened in thelight of what Monte was told, but this speculation was itself based on thefalse premisethat there was a relationship, contact or discussion with Gianni.

184Furthermore, the defence is defeated bys 33(2). In so far as thiscase is concerned, this section provides that a defence of comment does notapply if it is shown that when thecomment was made it did not represent theopinion of Monte. As mentioned above, the evidence in cross-examination wasthat Monteadmitted that he never believed any of the imputations inpar 27 against the company were true. When asked about the imputationsconcerning Santo he said that he did not believe the imputations in par 28to be true. In relation to Donatella, he said that onlysubpars 29(a) and (b)and (d) were objectively true and that his belief was held as a result of whathe was allegedly told by Gianniand from reading newspaper clippings andinformation from journalists and inquiries. He did not assert that he believedany otherimputations against Donatella were true. In these circumstances thedefeasance provision ins 33(2) in relation to comment is applicable tocounter Monte's defence.

185A further ground on which the defence of comment is defeated is that the socalled comment was not related to a matter of publicinterest withins 31of theDefamation Act.

186Section 31 of theDefamation Act provides that the defence of comment isnot available unless the comment relates to a matter of public interest. Thenotion of publicinterest was considered by Simpson J inGreen vSchneller[2000] NSWSC 548, where her Honour applied the High Courtdecision inBellino v Australian Broadcasting Corporation[1996] HCA 47;(1996) 185 CLR183. At[24] of her reasons, after referring toBellino, her Honourstated:

"There the majority held that the concept of a subject of publicinterest entails the notion that the person or institution whoseactivities areinvolved has engaged in activities that either inherently, expressly orinferentially invite public criticism or discussion.... A salacious interestby members of the public in a particular subject matter, of which they had noprevious knowledge and whichwas introduced to them by the very publication inquestion, does not translate the subject matter of the publication into amatterof public interest ..."

187Her Honour's remarks are especially apposite in the circumstances of thepresent case. Scandalous gossip and rumour giving riseto curiosity orinterest cannot create a topic of public interest which can then be relied onto justify the repetition of that material,on the ground that it invitespublic criticism or discussion.

188InBellino, Dawson, McHugh and Gummow JJ at 219-221 said:

"... a `subject of public interest' was understood in the law ofdefamation to refer to theconductof a person engaged in activitiesthat either inherently, expressly or inferentially invited public criticism ordiscussion ...

For the purpose of s 377(8), the subject of the public interest neednot be concerned with the conduct of the plaintiff."(Emphasis inOriginal)

189In one sense the conduct of the applicants or those involved in theVersace business could possibly be a matter of "interest"to the public. Thisdoes not mean that groundless allegations of reprehensible conduct attractcomment on such non-existent conduct. There must first be some activity orconduct which has occurred or is considered on reasonable grounds to haveoccurred in respectof which comment can be made. Under the guise of comment,groundless assertions cannot be fabricated and then "commented" upon byway ofevaluative appraisal so as to make good a defence of comment. That, insubstance, is what Monte's case in relation to commentamounts to once it isaccepted (as I have found) that the matters referred to by him, namely theconversations with Gianni, nevertook place. I do not accept Monte'ssubmission on this aspect.

MALICE

190Although I have found that the respondents have failed to make good theirdefence of qualified privilege, the element of malicewas alluded to during thehearing before me and in the submissions made by the parties.

191If proven by the plaintiff or applicant, malice on part of a defendant orrespondent serves to defeat a defence of qualifiedprivilege. The law relatingto malice seeks to protect the community from action occasioned by improper ormalicious motive. Theclassic enunciation of the law is found in Lord Diplock'sreasoning inHorrocks v Lowe[1975] AC 135, where his Lordship stated at149:

" ...the motive with which the defendant on a privilegedoccasion made a statement defamatory of the plaintiff becomes crucial......heis entitled to be protected by the privilege unless some other dominant andimproper motive on his part is proved. `Express malice'is the term of artdescriptive of such a motive. Broadly speaking, it means malice in the popularsense of a desire to injure theperson who is defamed and this is generally themotive which the plaintiff sets out to prove."

192Thus, the improper motive that a plaintiff will usually seek toestablish is an intention on the part of the defendant to causeinjury to theplaintiff through the defamatory material. Normally, a failure on the part ofthe defendant to inquire into the truth,knowledge of the falsity of thedefamatory material or recklessness as to whether the matter complained of wastrue or otherwisefalse, will serve to indicate the improper motives underlyinga defendant's actions.

193In the present case, the applicants submitted that Monte's actions were onoccasion manifested by inherent malice towards membersof the Versace family,and in particular, Santo and Donatella. Although these assertions have noimpact on the outcome of theseproceedings in so far as I have concluded thatthe respondents have failed in their defence of qualified privilege, I willneverthelessaddress the issues raised by the parties in relation to Malice.

194In essence, I accept the submissions by the applicants. I am satisfied inthe present case having regard to the nature andgravity of the allegationsmade and the absence of any basis presented for publicly making suchimputations in relation to all thematters complained of, which I have found tobe made, Monte was motivated by malice, particularly in relation to imputationsrelatingto Donatella and Santo. The affidavit of Monte, which failed tomention the reversal on appeal of the conviction of Santo, coupledwith theextremely grave allegations against Donatella and Santo in relation to themurder of their brother which were presentedon an entirely false basis, are inmy view, sufficient to establish malice as an operative factor in the making ofthe representationsand imputations. The affidavit evidence of Monte, whichgoes to extreme lengths to attack Donatella with baseless assertions foundedonnon-existent conversations not in the book or the article, clearly emanatesfrom a deep seated and bitter resentment towards her. There was no evidentiarybasis in this case for such an attack. I am satisfied that Monte, in relationto the matters complainedof, acted with reckless disregard to the accuracy ofthat material in failing to make any substantial inquiries. It is to be notedthat malice was not the sole motivation. I am also satisfied that Monte actedto promote his reputation and his business as a privateinvestigator, as anauthor, and generally to procure maximum publicity and work for his businessand sales for the book.

ABUSE OF PROCESS

195The respondents argued that there has been an abuse of process in thismatter because two sets of proceedings have been institutedarising out of whatis said to be the same material. On 26 July 2001, the applicants causedproceedings to be issued in the SupremeCourt against Pan Macmillan. In thestatement of claim in that proceeding, the applicants complained that PanMacmillan publishedthe bookThe Spying Game in about June 2001 and thatit made the book available to a journalist forThe Australian newspaper.The statement of claim then alleged that the newspaper published the article of23-24 June 2001. In respect of both publicationsattributed to Pan Macmillan,that is to say the book and the article, the same defamatory imputations arepleaded in the presentproceedings in defamation in the amended statement ofclaim. The present proceedings were commenced on 10 August 2001. The SupremeCourt proceeding was settled on 23 October 2001 when the applicants in thisproceeding accepted an Offer of Amends under Division8 of theDefamation Act.Pan Macmillan agreed with a proposal by the solicitors for the applicants thatthe applicants would prefer for steps to be takenin the performance of theagreement to the Offer of Amendsafterthe Federal Court proceedings inthis matter had been completed.

196The abuse of process alleged by the respondents was that the request by thesolicitors of the present applicants to postponeperformance of the agreementin relation to the Offer of Amends was in effect an agreement to delay judgmentin the Supreme Courtproceedings. It was further submitted that the intentionwas to avoid the effect ofs 5(1)(b) of theLaw Reform (MiscellaneousProvisions) Act 1946(NSW) ("LRMP Act") which provides as follows:

"5(1)Wheredamageis suffered by any person as a resultof a tort ...:

(a)...

(b)If more than one action is brought in respect ofthat damageby or on behalf of the person by whom it was suffered ... againsttort-feasors liable in respect of the damage ...the sums recoverable underthe judgments givenin those actions by way of damages shall not in theaggregate exceed the amount of the damagesawarded by the judgment firstgiven; and in any of those actions, other than that in which judgment isfirst given, the plaintiff shall not be entitled to costs unlessthe court isof opinion that there was reasonable ground for bringing the action" (Emphasisadded)

197In the present case there has been no judgment delivered in relation tothe Supreme Court proceedings so that one cannot speakof "a" judgment firstgiven. Accordingly, the above section does not apply to these proceedings.

198The proposal in the Offer of Amends made by Pan Macmillan on 3 August 2001did not provide for the entry of judgment againstPan Macmillan in relation todamages so that there can be no question of abuse of process to avoid ordetract from the operationofs 5(1)(b) of theLRMP Act. The Offer ofAmends involved the publication of corrections or apologies, letters of adviceincorporating an apology, explanationsto any person who might have expressedconcern to the applicants about matters raised in relation the applicants inthe book andan offer to pay all proper and reasonable legal costs. The letterpurported to explain why Pan Macmillan claimed that it had innocentlypublishedthe material, how it had been misled and the steps it had taken to remedy thesituation. Pan Macmillan also provided astatutory declaration as to how itcame to publish the book and the steps it took to withdraw it fromcirculation.

199Reliance was placed by the respondents on the decision inHarris vPerkins[2001] NSWSC 258 where Newman AJ held that in circumstances wherethere had been a judgment given for $20,000, it was an abuse of process for thesuccessful plaintiff to bring further proceedings in respect of the second andthird reprints of the book against different defendantswhom he alleged werealso publishers and distributors of the book. His Honour considered thats 5(1)(b) would be contravened or circumvented. As I have found above,the circumstances of this case differ. There has not been a judgmententeredin relation to the Supreme Court proceedings. The finding by Newman AJ is notin point in this case because judgment hadpreviously been entered in thatmatter.

200It was also contended that the commencement and continuance of the federalproceedings was an abuse of process, apparently onthe basis that the principleenunciated by the High Court inPort of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45;(1981) 147 CLR 589, at 598 is applicable. This principle is sometimesreferred toAnshun Estoppel. In substance that principle dictates thata court requires the parties to litigation to bring forward their whole case sothat thecourts will not (in the absence of special circumstances) permit thesame parties to re-open the same subject for litigation in respectof a matterwhich might have been brought forward as part of the issues in contest in thefirst proceeding, but which has not beenbrought forward only because theparties have from negligence, inadvertence, or accident omitted part of theircase. It was submittedthat, based on the principles inAnshun,proceedings will be struck out in relation to an issue which could have andshould have been litigated in earlier proceedings.

201In my opinion,Anshun Estoppel is not relevant in the present casebecause the parties in the two cases are different. In addition, differentcauses of actionare involved, namely, the action under theTP Act and FT Act,in addition to the action in defamation. Different defences apply anddifferent remedies are sought. In addition toinjunctive relief, theapplicants in these proceedings seek Orders in the form of declarations.Accordingly, I do not consider thatthe respondents have made good any defencebased on abuse of process, in the form ofAnshun Estoppel or anycontinuation or circumvention of the provisions of theLRMP Act.

BROWNEv DUNN

202Mr Evatt submitted that the evidence of James and Monte as to the allegedMiami meeting on 2 January 1997 should be acceptedbecause there was nocross-examination directed to either witness to contradict the evidencerelating to that meeting. It was saidthat it would be unfair to allow theapplicants to submit to the contrary in the absence of an express challenge.

203In my view there has not been any breach of procedural fairness or of themore narrowly defined principle inBrowne v Dunn (1893) 6 R 67.Essentially, where it is intended to contradict a witness on a particularpoint, attention must be drawn to that factor point in cross-examination. Inthe present case it has been clear at all times that the applicants' case wasthat there has neverbeen any contact between Gianni and Monte. The evidenceof Daniele Ballestrazzi in his affidavit of 26 October 2001 and the attachedtravel records were specifically directed to that issue. The evidence ofBallestrazzi contradicted evidence in relation to Monteallegedly meetingGianni on 2 January 1997 in Miami. However, no evidence was adduced inresponse to it by the respondents. Therewas no indication, apart from purespeculation, that any significant material could have been put to either Jamesor Monte to contradictBallestrazzi's evidence other than by way of a baldassertion. The submission of Mr Evatt was simply that if the matter had beenspecifically raised, James or Monte "may have referred to objective evidencethat Gianni attended a New Year's Eve party on 31 December1996 in Miami".There was no documentary or other material or testimony offered to support sucha suggestion. Accordingly, I donot accept this submission.

DAMAGES

204The present part of the proceedings is concerned only with liability andrelief other than damages. The question of the detailednature and extent ofdamages occasioned by the breaches which I have found to be made out will beconsidered at a subsequent stageof these proceedings. It was suggested by therespondents in this case that the applicants have not suffered any damage.This submissionis clearly untenable. For present purposes in order todetermine what are appropriate Orders at this point of the case, it is onlynecessary to determine whether there is the probability that some damage hasbeen made out and whether it is likely that the misleadingand deceptiveconduct and the defamatory imputations will cause future damage if allowed tobe further published. In the case ofdefamation, on the findings I have made,some damage is presumed.

205There is at this stage no precise evidence as to any specific amount of anydamage which has been suffered. The evidence ofMr Beaton, a marketingconsultant, as to the reputation of the Versace brand, and as to thesusceptibility of the Versace brand namesto damage as a consequence of themaking of the representations and imputations, strongly support the applicants'case that theyhave suffered substantial damage to date and that more damage isanticipated. The evidence in relation to damages alluded to theadverse effecton confidence in terms of public perception, particularly among professionals.Mr Beaton considered that there wouldbe substantial impact on morale of theemployees in the business. He further considered that the Versace brand wasparticularlysusceptible to damage because of the identification of the Versacebrand with the Versace family. He did not consider that a judgmentin favourof the applicants would necessarily counter the negative publicity from thepublications and representations which havebeen made to date. He preparedcharts which confirmed that the Versace brand continued as a highly valuablebusiness following thedeath of Gianni, with worldwide revenues currently ataround AUD $ one billion per year. In addition to the evidence of MrBeaton,there was evidence from Giovanni Galbiati, the General Manager, ofGianni Versace SpA. He gave details as to the branding and promotionalactivities of the business and the extent of the Versace trade mark portfolio.He explained the "incalculable damage" to the Versacebrands and to the moraleof employees as a consequence of the representations and allegations complainedof. In particular, he consideredthat the representations and imputations havebeen made at the critical time during the transition of the business, followingthedeath of Gianni, which in turn maximised their adverse impact on thebusiness.

206The applicants' evidence as to damage was uncontradicted and not shaken incross-examination. It accords with likely expectations.From the seriouscriminal nature of the allegations detailed earlier in these reasons, it wouldfollow that the business of the applicantcompany and the reputations of Santoand Donatella are likely to have been damaged and that they will continue to bedamaged if therepresentations are repeated. Accordingly, I am satisfied thatpresent actual damage and likely future damage in the event of repetitionhasbeen established.

CONCLUSION

207On the issue of liability I am satisfied that the representations andimputations have with minor exceptions, been made andwere false andmisleading. I am satisfied that the defamation claims have been established.I am also satisfied that damage hasbeen and will continue to be suffered bythe applicants as a consequence of the representations and imputations. Theapplicantsare therefore entitled to appropriate injunctive relief and todeclarations in respect of these matters. I direct the applicantsto file andserve on the respondents a draft of the Orders which they seek in accordancewith these reasons. I direct the applicantsto file a timetable for thedetermination of damages in this matter. The matter is to be listed forresolution of these questionswith my Associate, to be arranged within fourteen(14) days.

Associate:

Dated:8 March 2002