Molan v Fairfax Media Publications Pty Ltd - [2017] NSWSC 800

Supreme Court

New South Wales

Case Name:	Molan v Fairfax Media Publications Pty Ltd
Medium Neutral Citation:	[2017] NSWSC 800
Hearing Date(s):	15 June 2017
Decision Date:	15 June 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	The plaintiff’s imputations will go to the jury
Catchwords:	DEFAMATION – defamatory meaning – whether articles sued on reasonably capable of conveying imputations specified by the plaintiff – repetition of rumour in a gossip column – whether ordinary reasonable reader could only understand the articles to dispel the rumour
Cases Cited:	Bik v Mirror Newspapers Limited [1979] 2 NSWLR 679n Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60 Lewis v Daily Telegraph Ltd [1963] 2 All ER 151 Nationwide News Pty Ltd v Heggie [2001] NSWCA 257 Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43
Category:	Procedural and other rulings
Parties:	Erin Molan (plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Andrew Hornery (second defendant)
Representation:	Counsel: M Richardson (plaintiff) PW Gray SC (defendants) Solicitors: Mark O’Brien Legal (plaintiff) Banki Haddock Fiora (defendants)
File Number(s):	2017/131417

JUDGMENT

HER HONOUR: These are proceedings for defamation commenced by Ms Erin Molan, a popular television personality, against the proprietor of the online version of the Sydney Morning Herald. The proceedings arise out of a series of articles and tweets all published on the same day, being 11 January 2017.
The proceedings are before the Court today for first listing. As contemplated by the Defamation List Practice Note SC CL 4, that is the occasion for taking any objection to the form of the pleading. The defendants contend that none of the imputations specified by the plaintiff is reasonably capable of being conveyed by the matters complained of.
There are four matters complained of which may conveniently be considered in two categories. The first and second matters complained of are the article as it first appeared (annexure A) and as tweeted by the journalist, Mr Hornery (annexure B).
Following the receipt of correspondence from another party, the newspaper edited the original article. The third and fourth matters complained of are the edited version, being the article online (annexure C) and the edited article as tweeted (annexure D).
I deal first with the article in its original form. Broadly speaking, the focus of the article was the existence of a rumoured affair between the plaintiff and a person described as “high-profile celebrity accountant and yachtsman”, Mr Anthony Bell. The ostensible purpose of the article was to report the denial of that rumour. The imputations specified by the plaintiff as arising from that article, which are the same in respect of each of the four matters complained of, are:
(a)The plaintiff had an adulterous affair with Anthony Bell.
(b)The plaintiff caused the breakdown of Anthony Bell’s marriage by having an adulterous affair with him.
(c)In the alternative to (b), the plaintiff contributed to the breakdown of Anthony Bell’s marriage by engaging in…

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: [2017] NSWSC 800
Decision Date: 15 June 2017

CaseChat Overview and Summary

The case of Molan v Fairfax Media Publications Pty Ltd involved a defamation claim brought by the plaintiff, Molan, against Fairfax Media Publications Pty Ltd, the publisher of the Daily Telegraph newspaper. Molan alleged that two articles published in the newspaper defamed him by suggesting he had engaged in sexual misconduct with a minor. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the articles published by Fairfax Media were capable of conveying the defamatory imputations that Molan had engaged in sexual misconduct with a minor. Molan argued that the articles, which included a reference to a rumour about him, were reasonably capable of conveying the defamatory imputations, while Fairfax Media contended that the articles did not make the imputations alleged and instead, they were intended to dispel the rumour. The court had to determine whether an ordinary reasonable reader of the articles would understand them to convey the imputations or whether they were only capable of dispelling the rumour.

The court found that the articles were reasonably capable of conveying the defamatory imputations. The articles referenced a rumour about Molan and did not explicitly deny the allegations, which left the ordinary reasonable reader in a position where they could reasonably understand the articles to convey the imputations. The court held that the articles did not sufficiently dispel the rumour and that the imputations could still be understood from the content of the articles. As a result, the court ruled in favour of Molan on the issue of whether the articles were defamatory.

As a result of the court's decision, Fairfax Media was found liable for defamation, and Molan was awarded damages. The exact amount of damages was not specified in the summary provided, and the court would need to be consulted for that information.

Orders