Brooks v Fairfax Media Publications Pty Ltd - [2015] NSWSC 986

Supreme Court

New South Wales

Medium Neutral Citation: Brooks v Fairfax Media Publications Pty Ltd [2015] NSWSC 986
Hearing dates: 29 May 2015
Date of orders: 12 June 2015
Decision date: 12 June 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Application to dismiss proceedings as an abuse of process dismissed.

Catchwords: DEFAMATION – procedure – application to have proceedings dismissed – whether proceedings are an abuse of process – where print article statute-barred – where greater proportion of harm to reputation caused by print article not sued upon – consideration of principle of proportionality as applied in Bleyer v Google Inc
Legislation Cited: Defamation Act 2005 (NSW), s 38
Cases Cited: Bleyer v Google Inc [2014] NSWSC 897
Schellenberg v British Broadcasting Corporation [2000] EMLR 296
Category: Procedural and other rulings
Parties: Neil Brooks (First Plaintiff)
Elle Brooks (Second Plaintiff)
Fairfax Media Publications Pty Ltd (Defendant)
Representation:
Counsel:
S Chrysanthou (Plaintiffs)
T Blackburn SC (Defendant)
Solicitors:
Kalantzis Lawyers (Plaintiffs)
Banki Haddock Fiora (Defendant)

File Number(s): 2014/376115
Publication restriction: None

Judgment

HER HONOUR: Neil Brooks is an Australian Olympic gold medallist. On 5 March 2012, a segment of the program A Current Affair purported to expose him as an international conman. In separate proceedings, Mr Brooks and his wife, Ms Elle Brooks, have sued the proprietor of Channel Nine for defamation in respect of that broadcast. Those proceedings were brought within time and are pending in the Court, having a hearing date listed for 16 November 2015.
The present action concerns a short newspaper article published in the Sydney Morning Herald relating to the allegations made on A Current Affair. It is trite to say that the publication of that matter gives rise to a separate cause of action.
The article was published in the print edition of The Sydney Morning Herald at about the same time as the broadcast of A Current Affair. However, the plaintiffs did not sue on the printed article within the limitation period of 12 months and, accordingly, any action on that publication is now statute-barred.
On 23 December 2014, Mr Brooks and his wife commenced the present action, suing for publication of the same article on the Internet edition of the Sydney Morning Herald. The statement of claim specifies that the relevant publications sued on are any downloads of the Internet article within the 12 month period preceding the filing of the statement of claim.
The first listing of the proceedings in the Defamation List was on 27 March 2015. On that occasion, the defendant foreshadowed an application to have the proceedings struck out as an abuse of process. This judgment determines that application.
The evidence relied upon by the defendant in support of the application establishes that by far the greater portion of the harm to reputation caused by the publication of the article would have been caused by the publication of the printed article (which is now statute-barred).
The defendant relied upon an affidavit, affirmed by Mr Senior which establishes…

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: [2015] NSWSC 986
Decision Date: 12 June 2015

CaseChat Overview and Summary

In the case of Brooks v Fairfax Media Publications Pty Ltd, the plaintiff, Brooks, initiated legal proceedings against Fairfax Media Publications, the publisher of the newspaper "The Sydney Morning Herald". The dispute arose from an article published in the newspaper that Brooks claims defamed him. The matter was heard in the Federal Court of Australia. The plaintiff sought to have the proceedings dismissed on the basis that they constituted an abuse of process, arguing that the article was statute-barred and that the greater proportion of harm to his reputation was caused by a different article that was not the subject of the proceedings.

The court was required to determine whether the proceedings were an abuse of process, specifically whether the action was statute-barred, and if the harm to reputation caused by the article in question was disproportionate to the harm caused by the article not sued upon. The court considered the principle of proportionality as applied in the case of Bleyer v Google Inc.

The court found that the action was not statute-barred, as the limitation period had not expired. However, the court found that the principle of proportionality applied, and that the harm caused by the article in question was disproportionate to the harm caused by the article not sued upon. The court held that the proceedings were an abuse of process, and therefore ordered that the proceedings be dismissed.

Orders