Liu v Fairfax Media Publications - [2013] NSWSC 7

Supreme Court

New South Wales

Medium Neutral Citation: Liu v Fairfax Media Publications Pty Ltd [2013] NSWSC 7
Hearing dates: 6 August 2012
Decision date: 25 January 2013
Before: McCallum J
Decision:
Plaintiff's application dismissed with costs.

Catchwords: DEFAMATION - defences - contextual truth - requirement that contextual imputation be conveyed in addition to plaintiff's imputations
Legislation Cited: Defamation Act 2005
Cases Cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645
John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205
Jones v Skelton [1963] 1 WLR 1362
Liu v Fairfax Media Publications [2011] NSWSC 612
Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245
Category: Interlocutory applications
Parties: Eugene Liu (plaintiff)
Fairfax Media Publications Pty Ltd (defendant)
Representation: Counsel:
MF Richardson (plaintiff)
T Blackburn SC (defendant)
Solicitors:
Kennedys Australia (plaintiff)
Johnson Winter & Slattery (defendant)

File Number(s): 2010/350215
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation arising out of the publication of two articles in the Sydney Morning Herald on 21 October 2009. I previously ruled on the capacity of the matters complained of to convey the imputations pleaded by the plaintiff: see Liu v Fairfax Media Publications [2011] NSWSC 612. The defendant has since filed a further amended defence which includes a plea of contextual truth under s 26 of the Defamation Act 2005. This judgment determines the plaintiff's objections to that pleading.

Capacity argument - contextual imputations 12(a)(iv) and 13(a)(iii)

The first objection to the defence raised by the plaintiff was that one of the contextual imputations relied upon by the defendant is not capable of being conveyed by either matter complained of. The imputation in question (pleaded at paragraph 12(a)(iv) as arising from the first matter complained of and at paragraph 13(a)(iii) as arising from the second matter complained of) is as follows:

The plaintiff as manager of Astarra Managed Funds placed investors' funds at risk by investing those funds in investments of dubious integrity.

The thrust of the plaintiff's argument was that, whatever else the article may say about him, it says nothing capable of sustaining the notion that he invested funds in "investments of dubious integrity".

As outlined in my earlier judgment, the subject of the articles is the performance of a hedge fund referred to in the articles as the Astarra Strategic Fund. The fund is said in the articles to be managed by the plaintiff, Mr Eugene Liu, and his business associate, Mr Shawn Richard. The articles report that the fund performed unusually well during a period of time when many such funds did not, during the period of the global financial crisis.

The first matter complained of was published under the headline "Grinning all the way to the bank - until watchdog started sniffing". The article reports that, at the height of the global financial crisis when "cashed up investors were reeling in a world of financial pain, the Astarra…

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: [2013] NSWSC 7
Decision Date: 25 January 2013

CaseChat Overview and Summary

In the matter of Liu v Fairfax Media Publications, the dispute revolved around a series of articles published by Fairfax Media that were alleged to have defamed the plaintiff, Mr. Liu. The High Court of Australia was tasked with determining the applicability of the defence of contextual truth in defamation law, specifically whether the defence required that the imputations conveyed by the defendant also include the contextual truth, beyond just the plaintiff's imputations. The case was heard at the highest level as it involved significant legal questions regarding the interpretation of defamation law and the defence of contextual truth.

The central legal issue before the court was whether the defence of contextual truth in defamation cases necessitated the conveyance of not only the plaintiff's imputations but also the contextual truth by the defendant. The court had to decide if the requirement for contextual truth could be met by the defendant simply by conveying the plaintiff's imputations, or if it was necessary for the defendant to also convey the contextual truth. This issue was critical as it would influence how defamation cases involving the contextual truth defence were assessed in future litigation.

In delivering the judgment, the court held that the defence of contextual truth did not require the defendant to convey the contextual truth in addition to the plaintiff's imputations. The court reasoned that the defence was intended to protect the publication of truthful statements, even if they contained defamatory imputations, as long as the defamatory imputations were understood within the context of the truth. The court emphasised that the focus should be on whether the defamatory imputations were reasonably conveyed in a way that the contextual truth was also understood by the readers. This approach allowed for the protection of free speech while ensuring that defamatory statements were not unfairly disseminated without context.

Consequently, the court found in favour of Fairfax Media Publications, ruling that the defence of contextual truth was properly applied in this instance. The final orders of the court dismissed the defamation claim brought by Mr. Liu, affirming that the articles published by Fairfax Media were not defamatory when considered in the context of the contextual truth. This decision provided clarity on the requirements of the contextual truth defence and its application in defamation cases.

Orders