McVicker v Nine Digital Pty Ltd - [2025] QSC 110

SUPREME COURT OF QUEENSLAND

CITATION:

McVicker v Nine Digital Pty Ltd [2025] QSC 110

PARTIES:

ROBERT McVICKER

(Plaintiff)

v

NINE DIGITAL PTY LTD ACN 077 753 461

(Defendant)

FILE NO:

BS 15590 of 2023

DIVISION:

Trial Division

PROCEEDING:

Hearing of separate questions

DELIVERED ON:

26 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

24 April 2025

JUDGE:

Bowskill CJ

ORDERS:

THE COURT ANSWERS THE SEPARATE QUESTIONS AS FOLLOWS:

(a) Yes, the settlement offer accepted by the plaintiff was an offer to make amends within the meaning of division 1, part 3 of the Defamation Act 2005 (Qld).

(b)      The obligations under the agreement formed by acceptance of the offer to make amends are set out in the email of 6 May 2020. The obligations relevantly included publication of a notice headed “correction”, in the agreed form of words, on the 9Finance and A Current Affair websites (as distinct from the homepage for each website) for no less than 60 days.

(c)       Yes, the defendant carried out the correction obligation.

(d)      Not necessary to answer.

The Court will hear from the parties before making consequential orders.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – SEPARATE DECISIONS OF QUESTIONS – where an order was made under r 483 of the Uniform Civil Procedure Rules 1999 (Qld) that four questions be determined separately from, and in advance of, any other issue in the proceeding – where the plaintiff claims that the defendant published three publications on its websites which were defamatory of him – where the plaintiff claims damages for the damage to his reputation and emotional harm – where the defendant defends the claim on the basis that it carried out the terms of an offer to make amends which was accepted by the plaintiff and, consequently, s 17 of the Defamation Act 2005 (Qld) prevents the plaintiff from asserting or continuing an action for defamation – whether the offer accepted by the plaintiff was an offer to make amends within the meaning of the Defamation Act 2005 – consideration of the scope of the defendant’s obligations under the agreement – whether the defendant carried out the obligations

Defamation Act 2005 (Qld), s 14, s 17(1)

Uniform Civil Procedure Rules 1999 (Qld), r 483

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24, applied
Hafertepen v Network Ten Pty Ltd [2020] FCA 1456, cited
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, cited
Nationwide News Pty Ltd v Vass (2018) 98 NSWLR 672; [2018] NSWCA 259, considered

COUNSEL:
M Martin KC for the plaintiff

P J McCafferty KC and P Morreau KC for the defendant

SOLICITORS:
Mills Oakley for the plaintiff

Thomson Geer for the defendant

The plaintiff, Mr McVicker, claims that the defendant, Nine Digital, published three publications on its websites known as 9Finance and A Current Affair which were defamatory of him. By this…

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.

Continue reading McVicker v Nine Digital Pty Ltd

Details

AGLC: McVicker v Nine Digital Pty Ltd [2025] QSC 110
Case: [2025] QSC 110
Decision Date: 26 May 2025

CaseChat Overview and Summary

McVicker v Nine Digital Pty Ltd is a defamation case where the plaintiff, Mr McVicker, claims that the defendant, Nine Digital, published three defamatory articles about him on its websites. He seeks damages for the damage to his reputation and emotional harm. Nine Digital defends the claim by asserting that it fulfilled an offer to make amends, which was accepted by Mr McVicker, thereby preventing him from pursuing his action under section 17 of the Defamation Act 2005 (Qld). The court was required to determine whether the offer accepted by Mr McVicker constituted an offer to make amends, the scope of Nine Digital's obligations under the agreement, and whether Nine Digital fulfilled those obligations.

The court analysed the objective framework of facts within which the agreement was formed and found that the construction of the term "websites" contended for by Mr McVicker was not maintainable. The court noted that the allegedly defamatory articles were not published in full on the homepages of the websites, and there was a clear understanding between the parties about the distinction between the homepages and the websites more generally. The court held that the obligations under the agreement included the publication of a notice headed "correction" in the agreed form of words on the 9Finance and A Current Affair websites for no less than 60 days. The court found that Nine Digital carried out the correction obligation, and the court answered the separate questions in favour of Nine Digital.

The court ordered that the settlement offer accepted by Mr McVicker was an offer to make amends within the meaning of the Defamation Act 2005 (Qld), the obligations under the agreement formed by acceptance of the offer to make amends were set out in the email of 6 May 2020, and Nine Digital carried out the correction obligation. The court did not find it necessary to answer the fourth question. The court will hear from the parties before making consequential orders.

Orders

Orders of the court

THE COURT ANSWERS THE SEPARATE QUESTIONS AS FOLLOWS:

(a) Yes, the settlement offer accepted by the plaintiff was an offer to make amends within the meaning of division 1, part 3 of the Defamation Act 2005 (Qld).

(b) The obligations under the agreement formed by acceptance of the offer to make amends are set out in the email of 6 May 2020. The obligations relevantly included publication of a notice headed “correction”, in the agreed form of words, on the 9Finance and A Current Affair websites (as distinct from the homepage for each website) for no less than 60 days.

(d) Not necessary to answer.

The Court will hear from the parties before making consequential orders.

Background

Background to the litigation

As articulated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352: “… [w]hen the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting.”[37][37]Underlining added. Counsel for Mr McVicker submitted that the construction he contends be given to the word “websites” in the agreement is supported having regard to the way in which the allegedly defamatory articles were published. That is, as the argument for Mr McVicker evolved, what he expected is that the “correction” would be published in the same way that the allegedly defamatory articles were published – the “equal prominence” point. The construction of the word “websites” contended for by Mr McVicker is not maintainable when one considers the objective framework of facts within which the agreement formed by acceptance of the offer to make amends came into existence:(a)The articles complained of were not published in full on the homepage of either the A Current Affair website or the 9Finance website. They were published on the websites at unique URLs, accessible from a link (or tile) published on the homepage. (b)It is clear from Mr McVicker’s evidence (referred to in paragraph [12] above) and the lawyers’ correspondence preceding the making of the agreement, that the parties had a shared and clear understanding of the distinction between the homepages and the websites more generally. That is apparent from the email from Mr McVicker’s solicitor of 28 January 2020, and the response from Nine Digital on 31 January 2020 (referred to in paragraphs [17] and [18] above). What was first requested, on behalf of Mr McVicker, was publication of the correction “in the same medium as the original articles in question”, “accessible via the various homepages for 24 hours”, and “otherwise, accessible online for twelve (12) months”. That was not accepted by Nine Digital, which initially offered publication only on the 9Finance website, although ultimately agreed to publication on both the 9Finance and A Current Affair websites. There is no reference to the “homepages” in the subsequent correspondence, including the final email of 6 May 2020, which reflects the ultimate agreement between the parties.(c)The initial request from Mr McVicker’s solicitor, for the correction to be “accessible via the various homepages for 24 hours” is consistent with Mr Dodd’s evidence, about the period of time that links, or tiles, are accessible on the homepage (about 24 to 48 hours, as they are gradually moved down over time, as newer tiles or links are placed above them), and reflects a common understanding about that process as well.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	McVicker v Nine Digital Pty Ltd [2025] QSC 110
PARTIES:	ROBERT McVICKER (Plaintiff) v NINE DIGITAL PTY LTD ACN 077 753 461 (Defendant)
FILE NO:	BS 15590 of 2023
DIVISION:	Trial Division
PROCEEDING:	Hearing of separate questions
DELIVERED ON:	26 May 2025
DELIVERED AT:	Brisbane
HEARING DATE:	24 April 2025
JUDGE:	Bowskill CJ
ORDERS:	THE COURT ANSWERS THE SEPARATE QUESTIONS AS FOLLOWS: (a) Yes, the settlement offer accepted by the plaintiff was an offer to make amends within the meaning of division 1, part 3 of the *Defamation Act 2005* (Qld). (b) The obligations under the agreement formed by acceptance of the offer to make amends are set out in the email of 6 May 2020. The obligations relevantly included publication of a notice headed “correction”, in the agreed form of words, on the *9Finance* and *A Current Affair* websites (as distinct from the homepage for each website) for no less than 60 days. (c) Yes, the defendant carried out the correction obligation. (d) Not necessary to answer. The Court will hear from the parties before making consequential orders.
CATCHWORDS:	DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – SEPARATE DECISIONS OF QUESTIONS – where an order was made under r 483 of the Uniform Civil Procedure Rules 1999 (Qld) that four questions be determined separately from, and in advance of, any other issue in the proceeding – where the plaintiff claims that the defendant published three publications on its websites which were defamatory of him – where the plaintiff claims damages for the damage to his reputation and emotional harm – where the defendant defends the claim on the basis that it carried out the terms of an offer to make amends which was accepted by the plaintiff and, consequently, s 17 of the Defamation Act 2005 (Qld) prevents the plaintiff from asserting or continuing an action for defamation – whether the offer accepted by the plaintiff was an offer to make amends within the meaning of the Defamation Act 2005 – consideration of the scope of the defendant’s obligations under the agreement – whether the defendant carried out the obligations Defamation Act 2005 (Qld), s 14, s 17(1) Uniform Civil Procedure Rules 1999 (Qld), r 483 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24, applied Hafertepen v Network Ten Pty Ltd [2020] FCA 1456, cited Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, cited Nationwide News Pty Ltd v Vass (2018) 98 NSWLR 672; [2018] NSWCA 259, considered
COUNSEL:	M Martin KC for the plaintiff P J McCafferty KC and P Morreau KC for the defendant
SOLICITORS:	Mills Oakley for the plaintiff Thomson Geer for the defendant