Cummings v Fairfax Digital Australia & New Zealand Pty Ltd; Cummings v Fairfax Media Publications Pty Ltd

In *Cummings v Fairfax Digital Australia & New Zealand Pty Ltd* and *Cummings v Fairfax Media Publications Pty Ltd*, the New South Wales Court of Appeal considered appeals arising from defamation proceedings. The dispute concerned newspaper articles published by Fairfax Media, which were based on pleadings filed in civil proceedings alleging breach of duties and cruelty by horse trainers. The truth of these allegations had not yet been determined by a court at the time of publication. The plaintiffs, horse trainers, alleged that the articles conveyed defamatory imputations of guilt.

The Court of Appeal was required to determine several legal issues. These included whether the published articles conveyed a defamatory meaning, whether the publication of the articles constituted a republication that was a natural and probable consequence of the original publication, and whether the defence of publication of a fair summary of public documents under section 28 of the *Defamation Act 2005* (NSW) was available. Specifically, the Court had to consider whether the pleadings, accessed under Uniform Civil Procedure Rules 2005 (NSW), r 36.12(2), constituted "public documents" and whether the published material was a fair summary thereof, published honestly for the information of the public. The Court also examined the availability of the statutory qualified privilege defence under section 30 of the *Defamation Act 2005* (NSW) in relation to a poster advertising one of the articles, and whether this poster identified the plaintiff.

The Court applied established principles of defamation law, including the test for defamatory meaning and the requirements for statutory defences. Regarding the defence under section 28, the Court considered the meaning of "public document" and "open to inspection by the public" under section 28(4)(e), and whether the pleadings met these criteria. The Court also analysed the elements of statutory qualified privilege, including the requirement that the publication be made in good faith and for the purpose of informing the public. The Court found that the pleadings, having been deployed in court at a directions hearing prior to publication, were capable of being considered public documents for the purposes of section 28.

With respect to the appeal concerning the digital publication, the Court dismissed the appeal with costs. In relation to the print publication, the Court granted leave to appeal, dismissed the appeal with costs, granted leave to the respondents to cross-appeal, and allowed the cross-appeal, setting aside certain orders of the court below and ordering the cross-respondent to pay the cross-appellants’ costs of the cross-appeal.