Duma v Fairfax Media Publications Pty Limited (No 3) [2023] FCA 47
File number:
NSD 420 of 2020
Judgment of:
KATZMANN J
Date of judgment:
7 February 2023
Catchwords:
DEFAMATION – series of feature articles by two journalists about corruption in Papua New Guinea (PNG) – where articles related to grant of petroleum licence, activities of an ASX-listed company and PNG cabinet minister – where Minister alleged articles conveyed imputations that he had acted corruptly and illegally in several respects – whether one or more of the pleaded imputations were conveyed
DEFAMATION – defence of statutory qualified privilege – whether conduct of respondents in publishing the matters complained of was reasonable in the circumstances, having regard to the considerations in s 30(3) of the uniform defamation legislation – where no defence of justification or contextual truth was pleaded, whether “the objective truth” was relevant to the reasonableness of the respondents’ conduct
DEFAMATION – damages – extent of damages for non-economic loss – whether aggravated damages should be awarded – whether material relied on by publisher constitutes “directly relevant background context” which would mitigate damages in accordance with the principle in Burstein v Times Newspapers Ltd [2000] EWCA Civ 338; [2001] 1 WLR 579 and, if so, to what extent – whether, even if the material could mitigate damages, it was open to respondents to rely on it for that purpose in the light of their pleading
PRIVATE INTERNATIONAL LAW – where, in defamation proceeding, publication occurred in both Australia and PNG, whether s 11 of the Defamation Act 2005 (NSW) precludes recovery of damages for harm occasioned in PNG or requires applicant to sue in PNG
EVIDENCE – where documents provided to respondents by confidential source were tendered for all purposes, whether, in light of respondents’ pleading and cross-examination and where source was not called to give evidence, the use to which the documents could be put should be limited to proof of reasonableness of respondents’ conduct for purposes of qualified privilege defence
[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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AGLC
Duma v Fairfax Media Publications Pty Ltd (No 3) [2023] FCA 47
Case
[2023] FCA 47
Decision Date
CaseChat Overview and Summary
Duma v Fairfax Media Publications Pty Ltd (No 3) was a defamation proceeding brought by Mr Duma, a former Minister for Petroleum in Papua New Guinea (PNG), against Fairfax Media Publications Pty Ltd and two journalists. The dispute arose from a series of feature articles published by the respondents which related to a grant of a petroleum licence, the activities of an ASX-listed company and Mr Duma. Mr Duma alleged that the articles conveyed imputations that he had acted corruptly and illegally in several respects. The court was required to determine whether one or more of the pleaded imputations were conveyed, whether the defence of statutory qualified privilege was available to the respondents, whether the objective truth was relevant to the reasonableness of the respondents’ conduct, the extent of damages for non-economic loss, whether aggravated damages should be awarded, and the applicability of private international law.
The court found that all the matters complained of conveyed the imputations that Mr Duma acted corruptly by granting a 10% interest in a lucrative petroleum licence to Elevala, a company owned and controlled by his close associate, Mr Simon Ketan, and that he accepted a bribe from Horizon Oil. The court also found that the first, second, fourth, sixth, eighth, ninth and 10th matters complained of conveyed the imputation that Mr Duma conspired with Mr Ketan to use a shell company known as Elevala as a vehicle for the payment of bribes to Mr Duma. The court found that the defence of qualified privilege was not made out and that the objective truth was not relevant to the reasonableness of the respondents’ conduct. The court awarded Mr Duma damages of $545,000 including pre-judgment interest and found that he was entitled to aggravated damages. The court found that it was not open to the respondents to rely on material in mitigation of damages.
The court held that the matters complained of conveyed the imputations that were alleged by Mr Duma. The court held that the defence of qualified privilege was not made out as the conduct of the respondents in publishing the matters complained of was not reasonable in the circumstances. The court held that the objective truth was not relevant to the reasonableness of the respondents’ conduct. The court held that Mr Duma was entitled to aggravated damages and that the “objective truth” of the imputations may not be taken into account in mitigation of damages. The court held that damages should be awarded in the sum of $545,000 including pre-judgment interest.
The court made orders limiting the use of the evidence in exhibits 1 to 84 inclusive to the question of the reasonableness of the respondents’ conduct in publishing the matters complained of for the purpose of their defence of qualified privilege. The court made orders for judgment to be entered in favour of Mr Duma in the sum of $545,000. The court made orders that the respondents pay Mr Duma’s costs and that the question of the basis upon which those costs are to be paid be reserved. The court made orders facilitating Mr Duma’s application for indemnity costs. The court made orders for injunctive relief to be listed on a date to be fixed and limited the length of submissions on either issue to 5 pages without the leave of the court.
Orders
Orders of the court
1. Pursuant to s 136 of the Evidence Act 1995 (Cth), the use to be made of the evidence in exhibits 1 to 84 inclusive be limited to the question of the reasonableness of the respondents’ conduct in publishing the matters complained of for the purpose of their defence of qualified privilege.
2. There be judgment for the applicant in the sum of $545,000.
3. In the event that the respondents do not agree to remove the matters complained of (or publications in substantially the same form) from any and all of the websites on which they currently appear, by 7 March 2023:
(a) the respondent file and serve any submissions they may care to make against the order for injunctive relief the applicant seeks and any affidavit evidence; and
(b) within 14 days thereafter the applicant file any affidavit(s) and submissions in reply.
4. The respondents pay the applicant’s costs.
5. The question of the basis upon which those costs are to be paid be reserved.
6. By 28 February 2023 the applicant file and serve any evidence and submissions in support of their application for indemnity costs.
7. Within 14 days thereafter the respondents file and serve any evidence and submissions in response.
8. Within 7 days after receipt of the respondents’ submissions the applicant file and serve any evidence and submissions in reply.
9. Any application for injunctive relief and the application for indemnity costs be listed on a date to be fixed.
10. No submissions on either issue may exceed 5 pages without the leave of the Court.
11. There be liberty to apply on 2 days’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
In Fairfax v Kelly McHugh J provided no reasons for adopting a commercial rate of interest. Gogic was decided after Fairfax v Kelly. In Chau v ABC Rares J did not refer to Gogic. It seems to me that I am obliged to apply Gogic. There is no apparent reason to distinguish it. The fact that the damages were awarded for personal injuries had no bearing on the High Court’s reasoning. In these circumstances, I propose to take the same approach as Lee J in Kumova. Damages should be awarded on the whole of the award at the rate of 3% per annum from the date of the publication of the first and second matters complained of to the date of judgment. That works out to $44,876, which I will round up to $45,000, resulting in a total award of $545,000.Conclusions In summary, I have reached the following conclusions concerning the issues raised for consideration. First, all the matters complained of conveyed the imputations that:·Mr Duma as the Minister for Petroleum in PNG acted corruptly by granting a 10% interest in a lucrative petroleum licence to Elevala, a company owned and controlled by his close associate, Mr Simon Ketan; and·Mr Duma as the Minister for Petroleum in PNG accepted a bribe from Horizon Oil. The first, second, fourth, sixth, eighth, ninth and 10th matters complained of also conveyed the imputation that Mr Duma conspired with Mr Ketan to use a shell company known as Elevala as a vehicle for the payment of bribes to Mr Duma. In addition, the first and second matters complained of conveyed the imputation that: Mr Duma as the Minister for Petroleum in PNG acted corruptly in 2017 in relation to his efforts to move a naval base 10 kilometres inland. Second, the defence of qualified privilege is not made out. Consequently, the third issue (malice) does not arise. Third, Mr Duma is entitled to aggravated damages. Fourth, the “objective truth” of the imputations may not be taken into account in mitigation of damages. Fifth, damages should be awarded in the sum of $545,000 including pre-judgment interest.INJUNCTIVE RELIEF Mr Duma applied for an order that the matters complained of (as defined in his pleading) or any matter in substantially the same form, be removed from the AFR’s website, any archive and/or other website(s) associated with it and any other website operated or controlled by the AFR. The respondents indicated that they wished to reserve their position on this question until after judgment is published. Mr Duma did not object to this course. It is a reasonable approach. The respondents should have the opportunity to consider whether they will voluntarily remove the articles from their website and undertake not to publish matter in substantially the same form in the future before any order is made. If they do not agree to do so within a reasonable period of time after the delivery of judgment, I will hear and determine Mr Duma’s application.COSTS Costs should follow the event. Mr Duma asked to be heard after the delivery of judgment in relation to an order that his costs should be paid on an indemnity basis. I will make orders to facilitate this course.