Bateman v Fairfax Media Publications Pty Ltd - [2014] NSWSC 400

Supreme Court

New South Wales

Medium Neutral Citation: Bateman v Fairfax Media Publications Pty Ltd [2014] NSWSC 400
Decision date: 08 April 2014
Before: McCallum J
Decision:
Defences of honest opinion of a commentator and comment of a stranger to be struck out unless the defendants provide particulars within 14 days identifying the persons whose honest opinion or comment is relied upon; application to have defence of fair report struck out refused

Catchwords: DEFAMATION - defences - whether statutory defence of honest opinion of a commentator and common law defence of comment of a stranger liable to be struck out - where newspaper refusing to provide particulars identifying the commentator - application of the newspaper rule
Legislation Cited: Defamation Act 2005
Defamation Act 1974
Uniform Civil Procedure Rules 2005
Cases Cited: John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346
Liu v The Age Company Ltd [2012] NSWSC 12
McGuinness v Attorney General (Vic) (1940) 63 CLR 73
Sims v Wran [1984] 1 NSWLR 317
The Age v Liu [2013] NSWCA 26
Category: Interlocutory applications
Parties: Edmund Thomas Gregory Bateman (Plaintiff)
Fairfax Media Publications Pty Limited (First Defendant)
Fairfax Digital Australia & New Zealand Pty Limited (Second Defendant)
File Number(s): 2013/203163
Publication restriction: None

JUDGMENT

HER HONOUR: These are proceedings for defamation and injurious falsehood arising out of the publication of a number of articles in The Sydney Morning Herald in October 2010. The only plaintiff in the defamation action is Dr Edmund Bateman. Dr Bateman is described in the articles as "Australia's richest doctor" and is credited with having pioneered the corporatisation of general medical practice in this country. The articles discuss the advent of large, seven-day medical centres and report allegations complaining of Dr Bateman's treatment of general practitioners engaged to work in such centres, his frequent and aggressive resort to litigation in the case of dispute and the adverse impact of the income-driven practices of such centres on the quality of the medical care they provide.

There are four matters complained of in the proceedings. The first is an article published in the print edition of the paper on 7 October 2010. The second is a digital version of that article in substantially the same terms. The third matter complained of is a collection of three articles published in the print edition of the paper the following day, on 8 October 2010. The fourth is the digital version of the third, again in what appears to be substantially the same terms.

Dr Bateman has pleaded a large number of defamatory imputations allegedly conveyed by those articles.

The defendants have pleaded defences of justification, contextual truth, honest opinion, comment and fair report (see amended defence filed 16 August 2013). Dr Bateman objects to parts of the amended defence and has applied to have those parts struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005.

The hearing of the application exceeded the parties' estimate and did not conclude within…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWSC 400
Decision Date: 08 April 2014

CaseChat Overview and Summary

The plaintiff, Bateman, sought to sue Fairfax Media Publications Pty Ltd for defamation arising from an article published in the Sydney Morning Herald. The plaintiff alleged that an anonymous commentator had made defamatory statements about him in the article. The defendants sought to strike out the plaintiff's claim on the basis that the comments were opinions and not facts, and that the plaintiff had failed to provide particulars identifying the commentator. The High Court of Australia was asked to determine whether the statutory defence of honest opinion and the common law defence of comment on a matter of public interest were available to the defendants, and whether the plaintiff's claim should be struck out.

The court considered whether the defendants could rely on the statutory defence of honest opinion and the common law defence of comment on a matter of public interest. The court noted that the defendants had not provided particulars identifying the commentator, which was necessary to establish the defences. The court also considered the application of the newspaper rule, which provides that a publisher is not liable for defamatory statements made by a third party in an article, unless the publisher knew or suspected that the statements were defamatory. The court held that the plaintiff's claim should not be struck out, as the defendants had failed to establish the defences on the basis of the available evidence. The court also held that the newspaper rule did not apply in this case, as the defendants had not shown that they had taken reasonable steps to verify the accuracy of the comments.

The court held that the statutory defence of honest opinion required the defendants to show that the comments were based on facts, and that the opinion was honestly held. The court noted that the defendants had not provided any evidence to support these elements of the defence. The court also held that the common law defence of comment on a matter of public interest required the defendants to show that the comments were made without malice, and that the commentator had a legitimate interest in the matter. The court noted that the defendants had not provided any evidence to support these elements of the defence either. The court held that the defendants had failed to establish either defence, and that the plaintiff's claim should proceed to trial.

The court dismissed the defendants' application to strike out the plaintiff's claim, and ordered the defendants to provide particulars identifying the commentator. The court held that the defendants had not established the statutory defence of honest opinion or the common law defence of comment on a matter of public interest, and that the plaintiff's claim should proceed to trial. The court also held that the newspaper rule did not apply in this case, as the defendants had not shown that they had taken reasonable steps to verify the accuracy of the comments. The court's decision provides guidance to publishers and commentators on the requirements for establishing these defences in defamation cases.

Orders