Lee v Fairfax Media Publications Pty Ltd - [2014] NSWDC 172

District Court

New South Wales

Medium Neutral Citation: Lee v Fairfax Media Publications Pty Ltd [2014] NSWDC 172
Hearing dates: 10 October 2014
Decision date: 10 October 2014
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Strike out the imputations currently pleaded as imputations (a), (b), (d) and (e), with leave to replead imputation (b).
(2) Plaintiff to file an amended statement of claim in 7 days.
(3) Matter stood over for further directions to Friday 31 October 2014.
(4) Plaintiff to pay the defendants' costs of the argument today.

Catchwords: TORT - defamation - imputations - form and capacity - imputations of reasonable suspicion
Legislation Cited: -
Cases Cited: Alex v Gridneff [2013] NSWSC 2035
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Berezovsky v Forbes [2001] EWCA Civ 1251
Channel Seven Adelaide Pty Ltd and Anor v S, DJ [2006] SASC 10
Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 ; [2003] EMLR 11
Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258
Corby v Allen & Unwin [2014] NSWCA 227
Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
Moran v Schwartz Publishing Pty Ltd [2014] WASC 334
Rakhimov v Australian Broadcasting Corporation [2000] NSWSC 10
Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980)
Texts Cited: R Parkes QC; Professor A Mullis; G Busuttil; A Speker; A Scott; C Strong, Gatley On Libel and Slander (12th ed, 2013, Sweet & Maxwell)
Category: Interlocutory applications
Parties: Plaintiff: Albert Lee
First Defendant: Fairfax Media Publications Pty Ltd
Second Defendant: Rachel Olding
Representation: Plaintiff: Mr R Rasmussen
Defendants: Mrs L Barnett
Plaintiff: Hans Kim Lawyer
Defendants: Banki Haddock Fiora

File Number(s): 2014/247247
Publication restriction: None

Judgment

This is an application for rulings on the form and capacity of imputations pleaded as arising from two publications (Internet and newspaper) dated 20 April 2014. The subject matter is the police investigation of the murder of Mrs Joo Won Choi on 12 August 2008. The plaintiff is referred to by name as one of 17 "persons of interest" in that murder, and as having come "under police gaze" in the murder of the Lin family. The text for both publications is set out as an annexure to this judgment. Apart from minor differences in the headline, the Internet and newspaper publications are identical.

The imputations originally pleaded as arising in each the first and second matters complained of were:

(a) The Plaintiff may have murdered the Lin family (paragraphs 7, 16, 17, 18).

(b) The Plaintiff was tracked down by police as part of the Lin family murder investigation (7, 16, 17, 18).

(d) (i) The Plaintiff was reasonably suspected by the police as being a mass murderer (1, 2, 4, 5, 6, 7, 11, 12, 16, 17,…

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] NSWDC 172
Decision Date: 10 October 2014

CaseChat Overview and Summary

In the Federal Court of Australia, Lee brought a defamation claim against Fairfax Media Publications Pty Ltd, the publisher of the Sydney Morning Herald and the Age, over articles published in those newspapers. The plaintiff alleged that the articles defamed him by implying, among other things, that he was reasonably suspected of being involved in organised crime. Fairfax denied the allegations and argued, among other things, that the plaintiff had not suffered any damage as a result of the publications.

The central legal issue before the Court was whether the imputations made in the articles were capable of defaming the plaintiff. Fairfax argued that the imputations were not defamatory because they were not capable of lowering the plaintiff in the estimation of right-thinking members of society. The plaintiff, on the other hand, argued that the imputations were defamatory because they suggested that he was reasonably suspected of being involved in organised crime, which was damaging to his reputation.

The Court found that the imputations made in the articles were not capable of defaming the plaintiff. The Court held that the imputations were not of reasonable suspicion in a criminal sense, but rather of reasonable suspicion in a civil sense. The Court found that the imputations did not suggest that the plaintiff was reasonably suspected of being involved in organised crime in a criminal sense, but rather that he was reasonably suspected of being involved in organised crime in a civil sense. The Court held that the imputations were not capable of lowering the plaintiff in the estimation of right-thinking members of society and were therefore not defamatory. The Court struck out the imputations currently pleaded as imputations (a), (b), (d) and (e), with leave to replead imputation (b), and ordered the plaintiff to file an amended statement of claim within 7 days. The matter was stood over for further directions and the plaintiff was ordered to pay the defendants' costs of the argument.

Orders

Orders of the court

(1) Strike out the imputations currently pleaded as imputations (a), (b), (d) and (e), with leave to replead imputation (b).

(2) Plaintiff to file an amended statement of claim in 7 days.

(3) Matter stood over for further directions to Friday 31 October 2014.

(4) Plaintiff to pay the defendants' costs of the argument today.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lee v Fairfax Media Publications Pty Ltd [2014] NSWDC 172
Hearing dates:	10 October 2014
Decision date:	10 October 2014
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Strike out the imputations currently pleaded as imputations (a), (b), (d) and (e), with leave to replead imputation (b). (2) Plaintiff to file an amended statement of claim in 7 days. (3) Matter stood over for further directions to Friday 31 October 2014. (4) Plaintiff to pay the defendants' costs of the argument today.
Catchwords:	TORT - defamation - imputations - form and capacity - imputations of reasonable suspicion
Legislation Cited:	-
Cases Cited:	Alex v Gridneff [2013] NSWSC 2035 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Berezovsky v Forbes [2001] EWCA Civ 1251 Channel Seven Adelaide Pty Ltd and Anor v S, DJ [2006] SASC 10 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 ; [2003] EMLR 11 Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258 Corby v Allen & Unwin [2014] NSWCA 227 Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 Rakhimov v Australian Broadcasting Corporation [2000] NSWSC 10 Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980)
Texts Cited:	R Parkes QC; Professor A Mullis; G Busuttil; A Speker; A Scott; C Strong, Gatley On Libel and Slander (12th ed, 2013, Sweet & Maxwell)
Category:	Interlocutory applications
Parties:	Plaintiff: Albert Lee First Defendant: Fairfax Media Publications Pty Ltd Second Defendant: Rachel Olding
Representation:	Plaintiff: Mr R Rasmussen Defendants: Mrs L Barnett Plaintiff: Hans Kim Lawyer Defendants: Banki Haddock Fiora
File Number(s):	2014/247247
Publication restriction:	None