Ghaly v Fairfax Media Publications Pty Ltd

[2015] NSWSC 1004

Supreme Court

New South Wales

Medium Neutral Citation:	Ghaly v Fairfax Media Publications Pty Ltd [2015] NSWSC 1004
Hearing dates:	26 June 2015
Date of orders:	26 June 2015
Decision date:	26 June 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Defendant ordered to give discovery and answer interrogatories as sought
Catchwords:	DEFAMATION – publication – mass media article – whether plaintiff entitled to discovery and interrogatories directed to establishing extent of republication on other platforms – likelihood of syndication
Cases Cited:	Palmer-Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69; 208 CLR 388 Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674
Category:	Procedural and other rulings
Parties:	Kyrillos Ghaly(Plaintiff) Fairfax Media Publications Pty Ltd (Defendant)
Representation:	Solicitors: Turner Freeman (Plaintiff) Banki Haddock Fiora (Defendants)
File Number(s):	2014/351451
Publication restriction:	None

Judgment – ex Tempore

1. HER HONOUR: These proceedings are before the Court today for second listing as contemplated in the Defamation List Practice Note SC CL 4. The argument heard today raises a short but important question as to the entitlement of a plaintiff to discovery of documents from a media defendant disclosing the extent of harm suffered by the publication of an internet article.

2. The categories for discovery proposed by the plaintiff and proposed interrogatories to the defendant seek, in summary, to compel the defendants to disclose the extent to which the matter complained of, an article initially made available on The Sydney Morning Herald website, was also published by the further means of any syndication with other media websites and on The Sydney Morning Herald tablet app. That the extent of publication by those further means may be relevant to the quantification of the hurt and harm suffered by the plaintiff is established by my decision in Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 (it should be noted that an appeal against that decision has been heard but not yet determined).

3. The principal objection taken by the defendants to the discovery sought and to responding to interrogatories in respect of publication in those further forms or forums is that the plaintiff has not pleaded publication in those forms as an aspect of the publication complained of in the statement of claim.

4. For the reasons considered at length in my judgment in Pedavoli, I consider that a plaintiff is entitled to have information by one or other of those interlocutory processes so as to reveal the full extent of publication by other forms as going to the extent of harm and, as put by Mr Hanly-Jones on behalf of the plaintiffs, in order to enable the plaintiff to adduce evidence to support the so-called “grapevine effect”: cf Palmer-Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69; 208 CLR 388 at [89] per Gummow J.

5. I do not think the fact that the statement of claim contains no specific averment as to the extent of publication in those forms should preclude the plaintiff from using interlocutory processes to obtain information on that issue. The likelihood of further publication by syndication or like licensing arrangements is strong. There is accordingly a proper basis for seeking that information by compulsory process on the strength of a pleading which asserts damage to reputation arising from the publication of the original article posted on the internet by a mass-media defendant.

6. For those reasons, I am persuaded that the plaintiffs are entitled to discovery and interrogatories in accordance with the rulings I have indicated during argument. I direct the plaintiff to bring in a form of order reflecting those rulings by close of business today.

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Decision last updated: 23 July 2015