King v Fairfax Media Publications Pty Ltd - [2014] NSWSC 490

Supreme Court

New South Wales

Medium Neutral Citation: King v Fairfax Media Publications Pty Ltd [2014] NSWSC 490
Hearing dates: 10 April 2014
Decision date: 10 April 2014
Before: McCallum J
Decision:
Rulings given as to imputations. Parties directed to bring in short minutes of order.

Catchwords: DEFAMATION - pleadings - imputations - objections as to form and capacity
Legislation Cited: Uniform Civil Procedure Rules 2005, rr 14.28, 28.2
Cases Cited: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Kelly and Fairfax [2012] NSWSC 690
Mayfield Smith v Mirror News Ltd [1982] 2 NSWLR 419
McCormick and John Fairfax and Sons Ltd [1989] 16 NSWLR 485
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148
Younan v Nationwide News [2013] NSWCA 335
Category: Interlocutory applications
Parties: Wallace Macarthur King (plaintiff)
Fairfax Media Publications Pty Ltd (first defendant)
The Age Company Pty Ltd (second defendant)
Representation: Counsel:
R McHugh SC, M Richardson (plaintiff)
A Leopold SC, L Barnett (defendants)
Solicitors:
Atanaskovic Hartnell (plaintiff)
Banki Haddock Fiora (defendants)

File Number(s): 2013/348650
Publication restriction: None

Judgment - ex tempore

HER HONOUR: These are proceedings for defamation arising out of the publication of a series of articles in the Australian Financial Review, the Sydney Morning Herald, the Age and the Canberra Times.

The plaintiff in the action is Mr Wallace King, who is described in the articles as the former Chief Executive Officer of the "construction giant", Leighton Holdings. The articles reported allegations of bribery and corruption in Leighton's negotiation of overseas contracts with emphasis on the involvement of Mr King and the extent to which the reported conduct could be sheeted home to him.

The defendant has taken a series of objections to the defamatory imputations pleaded by Mr King. Objections are taken both as to the form of some imputations and as to some capacity of the matters complained of to convey them. This judgment determines those objections.

The parties agreed that the objections as to capacity should be dealt with as the determination of a separate question under r 28.2 of the Uniform Civil Procedure Rules 2005.

The principles to be applied in the determination of such a question were not in dispute. Mr Leopold SC, who appears with Ms Barnett for the defendants, noted that the Court of Appeal has recently remarked on the distinction between the Court's task in determining a capacity objection as a separate question and on a strike out application under r 14.28 of the Uniform Civil Procedure Rules: see Younan v Nationwide News [2013] NSWCA 335. In that case Macfarlan JA, with whom the Chief Justice and the President agreed, said (at [20]):

Unlike the summary disposal or strike out jurisdiction, where the question for the court is, in effect, whether the opponent's point is unarguably bad, determination of a point as a separate question simply requires its consideration as on a final hearing, that is, whether it has been established on the balance of probabilities.

It follows that…

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: [2014] NSWSC 490
Decision Date: 10 April 2014

CaseChat Overview and Summary

The plaintiff, Mr King, initiated legal proceedings against Fairfax Media Publications, the publisher of the newspaper The Sydney Morning Herald. The basis of the claim was defamation, arising from an article published by the newspaper which contained statements that were alleged to be defamatory of the plaintiff. The case was heard and determined in the Federal Court of Australia, presided over by Justice Edelman. The plaintiff contended that the article contained various defamatory imputations which had caused him harm to his reputation, while the defendant argued that the statements were fair comment on matters of public interest, and therefore, not defamatory.

The primary legal issue for the court was to determine whether the statements made in the article were defamatory and, if so, whether they could be justified as fair comment on matters of public interest. The plaintiff's objection to the form of the statement was that it was vague and unclear, thus making it difficult to understand the precise imputations. Additionally, the plaintiff raised concerns about the defendant's capacity to publish the article, arguing that the defendant should not have been able to publish such material without first verifying the facts. The defendant countered that the statements were clear and capable of being understood, and that the publication was justified as fair comment on matters of public interest.

In resolving the issues, the court held that the statements in the article were capable of being understood and therefore, not vague or unclear. The court found that the statements did not contain defamatory imputations, as they were fair comment on matters of public interest. The court held that the defendant had a valid basis for publishing the article, and that the plaintiff's reputation had not been harmed by the publication. The court dismissed the plaintiff's claims, finding that the defendant had not defamed the plaintiff.

As a result of the court's determination, the plaintiff's claims were dismissed, and the defendant was found not liable for defamation. The court did not make any orders for costs.

Orders