Chel v Fairfax Media Publications Pty Ltd (No 4)

[2017] NSWSC 107

Supreme Court

New South Wales

Medium Neutral Citation:	Chel v Fairfax Media Publications Pty Ltd (No 4) [2017] NSWSC 107
Hearing dates:	16 February 2017
Date of orders:	16 February 2017
Decision date:	16 February 2017
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Issue withdrawn from the Jury
Catchwords:	DEFAMATION – fair report – plaintiff seeks to defeat defence by arguing report not made honestly for the information of the pubic – Defamation Act, s 29(3) – plaintiff relied on errors in report to prove lack of honesty – if established fair report defence would fail –reliance on s 29(3) would never arise – question withdrawn from Jury
Legislation Cited:	Defamation Act 2005 (NSW), s 29
Category:	Procedural and other rulings
Parties:	Lili Chel (Plaintiff) Fairfax Media Publications Pty Ltd (First Defendant) Vanda Carson (Second Defendant)
Representation:	Counsel: C Evatt; R Rasmussen (Plaintiff) T Blackburn SC; L Barnett (Defendants)   Solicitors: Beazley Singleton Lawyers (Plaintiff) Banki Haddock Fiora (Defendants)
File Number(s):	2011/409423

EX TEMPORE Judgment

1. At the conclusion of the defendant's case, and prior to the resolution of some further argument about a possible case in reply, Senior Counsel for the defendants applied to take from the jury the issue raised by para 2 of the plaintiff's Reply. In the Defence, the defendants pleaded, inter alia, that the relevant article constituted a “fair report” of proceedings of public concern, specifically proceedings in the Land and Environment Court, ie, they invoke the defence provided for in s 29(1) of the Defamation Act 2005. By para 2 of her Reply, the plaintiff sought to defeat that defence by invoking s 29(3), which provides that the defence established under s 29(1), (or 29(2)), is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly “for the information of the public or the advancement of education”.

2. Contained within MFI 2 is an exchange of particulars, which include particulars of para 2 of the plaintiff’s reply.  Those particulars reveal that the only matters particularised by the plaintiff in support of this allegation is the alleged falsities in the article itself, specifically various alleged instances of false reporting of the Land and Environment Court proceedings.  Consistent with this, when argument on this matter arose, Counsel for the plaintiff proceeded to identify what he contends, and no doubt will contend to the jury, were egregious errors of reporting to be found within the article.  The underlying assumption behind the particulars and Counsel's submission is that the jury could draw an inference from the supposedly egregious errors of reporting contained within the article that the defamatory matter was not published honestly for the information of the public or the advancement of education.  Nothing else was relied upon. 

3. The difficulty with this way of putting the case is that it is predicated on demonstrating those egregious errors in the article most of which were clearly, on the plaintiff's case, damaging to her reputation. Try as he could, Counsel for the plaintiff could not identify any possible chain of reasoning along these lines by which a jury could first conclude that the article was a fair report but still also draw an inference that the article was not published honestly for the information of the public or the advancement of education.

4. For my part, having listened to the argument closely, I could not conceive of how any jury could reason in that way either. I conclude that, as a matter of law, there is no means by which any jury could arrive at a determination of the issue posed by s 29(3) in the manner particularised and relied upon by the plaintiff. Instead, if the various matters put forward by the plaintiff are accepted, it would inevitably be the case that the defence seeking to raise s 29(1) would have failed.

5. In those circumstances, the jury could never get to s 29(3). For that reason, a question concerning that provision will not be posed to the jury.

**********