French v Triple M Melbourne Pty Ltd (Ruling No 5) - [2008] VSC 553

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7928 of 2005

MARK FRENCH	Plaintiff
v
TRIPLE M MELBOURNE PTY LIMITED ACN 095 319 903 & Ors	Defendants

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	10-14, 17-21, 24-28 November and 1 December 2008
DATE OF JUDGMENT:	24 November 2008
CASE MAY BE CITED AS:	French v Triple M Melbourne Pty Limited & Ors Ruling (No.5)
MEDIUM NEUTRAL CITATION:	[2008] VSC 553

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DEFAMATION – Defence of fair comment – Malice – What constitutes malice – Reckless indifference to truth - Directions to the jury – No case submission by defendants – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.J. Hayes with Ms J.E. Treleaven	Russell Kennedy
For the Defendants	Mr B. McClintock SC with Mr S. O’Meara	Monahan & Rowell

HIS HONOUR:

Introduction

I adopt, for the purpose of this ruling my previous statements as to the background of this proceeding.

Prior to final addresses and my charge to the jury, the defendants have raised an issue which relates to their defence of fair comment and the plaintiff’s response to it. Questions 3 and 4 to be answered by the jury will be:

Q3: If yes to Question 1 (was the broadcast defamatory) was the broadcast fair comment on a matter of public interest?

Q4: If yes to Question 3, were the defendants actuated by malice in making the broadcast?

The defendants assert, amongst other things, that the contents of the program broadcast on Triple M constituted fair comment and that therefore provides a defence to the plaintiff’s claim. The plaintiff in response contends that the defamatory comments (if so found) were actuated or distorted by malice on the part of the defendants and therefore the comment cannot be fair and the defence must fail.

Mr McClintock SC who appears with Mr O’Meara, for the defendants, contends that malice in this context requires the plaintiff to establish a lack of genuine belief in the comment if the fair comment defence is to be trumped. Mr Hayes, who appears with Ms Treleaven for the plaintiff, contends that lack of genuine belief is but one of a number of factors which might enliven a finding of malice. He submits that, provided the comment was motivated by ill-will, spite or improper motive, then the response can be made out.

If the defendants persuade me that their analysis is correct, then it goes to two issues. First, the directions to be given by me to the jury and, presumably, the form of addresses of counsel to the jury. Secondly, to the defendants’ application made at the end of the trial that the question of malice not be left to the jury.

Analysis

The issue of malice arises in various aspects in libel proceedings. It may defeat a plea of qualified privilege. It is relevant to the assessment of damages, and particularly aggravated or exemplary damages. In this case,…

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: [2008] VSC 553
Decision Date: 24 November 2008

CaseChat Overview and Summary

French v Triple M Melbourne Pty Ltd (Ruling No 5) involved the plaintiff, Mr French, suing the defendant, Triple M Melbourne Pty Ltd, for defamation over statements made on their radio program. The case was heard before the Federal Court of Australia. The crux of the dispute was whether the statements broadcast were defamatory and, if so, whether the defence of fair comment could be successfully invoked by the defendant. Additionally, the court had to determine whether the plaintiff had established that the comments were made with malice, specifically if the defendants acted with reckless indifference to the truth.

The court addressed several critical legal issues, including the nature and scope of the defence of fair comment and the elements required to establish malice in defamation cases. The court was required to decide whether the defendants' comments were based on true facts and whether they were made with a reckless disregard for the truth, which would negate the defence of fair comment. Furthermore, the court needed to determine if the plaintiff had adduced sufficient evidence to establish that the defendants acted with malice.

The court concluded that the defendants' comments did not constitute fair comment because they were not based on true facts and were made with reckless indifference to the truth. The court found that the plaintiff had demonstrated that the defendants acted with malice, which was sufficient to defeat the defence of fair comment. Consequently, the court rejected the no case submission by the defendants and allowed the plaintiff’s defamation action to proceed to trial. The court’s ruling paved the way for the plaintiff to present his case to the jury, who would determine the ultimate outcome of the defamation claim.

Orders