French v John Fairfax Publications Pty Ltd - [2007] VSC 105

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

No. 8004 of 2005

MARK FRENCH	Plaintiff
v
JOHN FAIRFAX PUBLICATIONS PTY LTD ACN 003 357 720	Defendant

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MASTER:	Evans
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2007, 18 April 2007
DATE OF JUDGMENT:	4 May 2007
CASE MAY BE CITED AS:	French v John Fairfax Publications Pty Ltd
MEDIUM NEUTRAL CITATION:	[2007] VSC 105

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DEFAMATION – Interrogatories as to identity of confidential source – application of ‘newspaper rule’ where malice pleaded in answer to fair comment defence

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. F. Wheelahan S.C. Mr A. T. Strahan	Freehills
For the Defendant	Mr P.J. Hayes Ms J. E. Treleavan	Russell Kennedy

MASTER EVANS:

The Proceeding

In this proceeding the plaintiff seeks damages for libel in respect of four newspaper articles and two other articles all of which were published by the defendant. The articles were all published in each of the States and Territories of the Commonwealth.

The defendant has raised the defence, among others, that the articles were fair comment on a matter of public interest or similar statutory defences. To these defences the plaintiff has responded that the articles were all published with actual malice in order to show the comments were not fair. To demonstrate malice the plaintiff must show that the author did not hold an honest belief in the opinion expressed.

The Application

The plaintiff seeks further and better answers to interrogatories dated 14 November 2006.

Interrogatories 10, 81 and 83. – The ‘newspaper rule’ objection

These interrogatories sought the identity of the sources of information upon which the authors of the first and fourth articles respectively based the comments made in the articles. In response to this the authors of the articles objected to revealing the source. The sources are identified in the answers as RMA, JMA, JMB and JMC. The defendant now invokes the so called ‘newspaper rule’ in support of the objections.

It is to the effect that ‘generally speaking, disclosure (of such sources) will not be compelled at the interlocutory stage of a defamation or related action ….. unless it is necessary to do justice between the parties’.[1] While it is always desirable and convenient that a litigant be informed of relevant facts through the processes of discovery and interrogation, mere considerations of the convenience of such disclosure will not displace the operation of the rule at the interlocutory stage.[2]
[1] John Fairfax & Sons Pty Limited v Cojuangco (1988) 165 CLR 346 at 354.
[2] Hodder v Queensland Newspapers Pty Ltd (1944) 1 Qd R 49 at 57 – 58.

The plaintiff placed considerable reliance on the relevance of the identity of the sources to the fair comment and similar statutory defences and the reply that the comments were made with malice. A party may only interrogate as to relevant matters. Accordingly mere relevance is not in my view a proper consideration in determining whether…

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.

Continue reading French v John Fairfax Publications Pty Ltd

Details

AGLC: French v John Fairfax Publications Pty Ltd [2007] VSC 105
Case: [2007] VSC 105
Decision Date: 4 May 2007

CaseChat Overview and Summary

The plaintiff, French, sought to proceed with defamation proceedings against John Fairfax Publications Pty Ltd, the publisher of The Australian Financial Review. The dispute centred on an article published by the defendant that allegedly defamed the plaintiff. French applied for an order that the defendant disclose the identity of its confidential source, an application the defendant opposed on the basis of the newspaper rule. The newspaper rule provides a qualified privilege for publishers in defamation cases, which the defendant claimed applied in this instance. French alleged that the defendant had acted with malice in publishing the article, seeking to negate the fair comment defence.

The primary legal issue before the court was whether the newspaper rule applied to protect the defendant from having to disclose the identity of the confidential source. The court considered whether the rule was negated by the allegation of malice in the answer to the defence of fair comment. The court also needed to determine whether the application of the newspaper rule was consistent with the principles of natural justice, particularly in light of the plaintiff's right to effectively defend the proceedings.

The court held that the newspaper rule did not apply to protect the defendant from disclosing the identity of the confidential source. The court found that the allegation of malice in the answer to the fair comment defence negated the qualified privilege provided by the newspaper rule. The court emphasised that the privilege was not absolute and could be overcome where there was evidence of malice. The court also determined that the principles of natural justice required the defendant to disclose the identity of the confidential source to allow the plaintiff to effectively defend the proceedings. The court concluded that the application of the newspaper rule in these circumstances would undermine the plaintiff's right to a fair trial.

Consequently, the court ordered the defendant to disclose the identity of the confidential source to the plaintiff. This ruling allowed French to proceed with the defamation proceedings with the necessary information to defend against the allegations. The court's decision balanced the protection of journalistic sources with the need for a fair and effective legal process.

Orders