Murdoch v Private Media Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Murdoch v Private Media Pty Ltd [2022] FCA 1275

File number: NSD 673 of 2022
Judgment of: WIGNEY J
Date of judgment: 21 October 2022
Date of publication of reasons: 28 October 2022
Catchwords:

DEFAMATION – nature and scope of public interest defence in s 29A of Defamation Act 2005 (NSW) – analysis of the statutory elements in s 29A defence – whether the “matter” concerns an issue of “public interest” for the purposes of s 29A(1)(a) – consideration of comparable defence in s 4 of Defamation Act 2013 (UK) and United Kingdom authorities – qualified privilege defence in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 – sufficiency of mitigation of damages pleading – relevance of malice to reasonable belief element in s 29A(1)(b) – etymology of the word “furphy” – whether that issue was a “furphy”

PRACTICE AND PROCEDURE – application to strike out impugned paragraphs of defence – whether impugned paragraphs are evasive or ambiguous, or likely to cause prejudice, embarrassment or delay, or fail to disclose a reasonable defence – held that impugned paragraphs disclose reasonable defence – application by respondents to strike out allegation of malice in applicant’s reply – both interlocutory applications dismissed

Legislation:

Evidence Act 1995 (Cth) s 144

Federal Court Rules 2011 (Cth) r 16.21

Defamation Act 1974 (NSW) (repealed)

Defamation Act 2005 (NSW) ss 8, 10A, 15, 18, 29A, 29A(1)(a), 29A(1)(b), 29A(2), 29A(3), 29A(3)(a), 30, 30(4), 31

Defamation Amendment Act 2020 (NSW) sch 1 cl 27

Defamation Amendment Bill 2020 (NSW), Explanatory Note

Defamation Act 2013 (UK) ss 4, 4(1), 4(6)
Cases cited:

Banks v Cadwalladr [2022] EWHC 1417 (QB)

Barilaro v Google LLC [2022] FCA 650

Chandrasekeran v Commonwealth of Australia (No 3) [2020] FCA 1629

Doyle v Smith [2018] EWHC 2935 (QB)

Economou v de Freitas [2016] EWHC 1853 (QB)

Economou v de Freitas [2018] EWCA Civ 2591

Edwards v Nine Network Australia Pty Limited [2022] FCA 509

Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77

Faruqi v Latham [2018] FCA 1328

Goody v Odhams Press Ltd [1967] 1 QB 333

Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359

John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364

Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB)

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

London Artists Ltd v Littler [1969] 2 QB 375

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423

Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749

Pamplin v Express Newspapers Ltd [1988] 1 WLR 116; [1988] 1 All ER 282

Plato Films Ltd v Speidel [1961] AC 1090

Reynolds v Times Newspapers Ltd [2001] 2 AC 127

Rush v Nationwide News Pty Ltd (2018) 359 ALR 473; [2018] FCA 357

Scott v Sampson (1882) 8 QBD 491

Serafin v Malkiewicz [2020] 1 WLR 2455; [2020] UKSC 235
Division: General Division
Registry: New South…
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Details
Case
[2022] FCA 1275
Decision Date

CaseChat Overview and Summary

The case of Murdoch v Private Media Pty Ltd involved a defamation claim brought by Mr Murdoch against Crikey, an online publication, and its editor. The central issue was the nature and scope of the public interest defence under section 29A of the Defamation Act 2005 (NSW), focusing on whether certain facts pleaded by Crikey were relevant to the public interest defence. The court had to decide whether the facts pleaded by Crikey were relevant to determining whether the publication concerned an issue of public interest, and if the pleadings were sufficient for the defence. The court also considered whether the pleadings adequately addressed the reasonable belief element of the defence, including the relevance of malice.

The court held that it was at least arguable that the facts pleaded by Crikey were relevant to determining whether the publication concerned an issue of public interest. The court rejected the argument that the issue of public interest should be determined solely based on the content of the article and facts that could be judicially noticed. The court found that the pleadings, though not perfect, disclosed a reasonably arguable defence under section 29A, and that the deficiencies could be remedied by providing further particulars. The court also concluded that the pleading of the Lange defence, though less than ideal, was not so deficient as to warrant being struck out and could be remedied by providing further particulars. Consequently, the interlocutory applications by both parties to strike out certain paragraphs of the defence were dismissed.

The court ordered that the interlocutory application by Mr Murdoch dated 22 September 2022 be dismissed, and that the interlocutory application by Crikey dated 5 October 2022 be dismissed as well. The costs associated with these interlocutory applications were reserved for determination at a later stage. The court's decision emphasised that the final determination of the public interest defence and other related issues should be made at the trial once the evidential and factual issues are crystallised.

Orders

Orders of the court

1. The applicant’s interlocutory application dated 22 September 2022 be dismissed.

2. The respondents’ interlocutory application dated 5 October 2022 be dismissed.

3. The costs of, and associated with, the interlocutory applications be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

It follows that, in my view, it is at least arguable that, in a case where there is a dispute about the existence of facts that would, if proved, tend to demonstrate that the defamatory matter in question concerned an issue of public interest, it is open to the plaintiff to plead and seek to prove those facts at trial. I am unable to accept the argument advanced on Mr Murdoch’s behalf that the issue of public interest is to be determined only on the basis of the content of the article itself and facts in respect of which judicial notice may be taken. While the question whether the issues addressed in a publication were issues of public interest may be relatively straightforward and uncontentious in some cases, where the question is controversial and depends on contested or contestable facts and circumstances that existed at the time of publication, it is open to a plaintiff to plead and seek to prove those facts at trial. Is it reasonably arguable that the facts pleaded in paragraphs 1 to 16 of the defence are relevant to the issue of public interest? As has already been noted, the main thrust of Mr Murdoch’s contention that paragraphs 1 to 16 of Crikey’s defence should be struck out was that the objective truth of the facts referred to in those paragraphs cannot be relevant to any of the elements of Crikey’s defence under s 29A of the Defamation Act. That was said to be because the Court’s assessment of whether the defamatory matter in question concerned an issue or issues of public interest must be based solely on the terms of the defamatory matter, facts in respect of which judicial notice could be taken, and “the application of ordinary standards”. Facts and circumstances surrounding the publication of the defamatory matter were said to be irrelevant to any assessment of whether the matter concerned issues of public interest. Surrounding facts and circumstances were also said to be irrelevant to an assessment of whether the publisher’s belief that the publication of the matter was in the public interest was reasonable. The objective element of that assessment, so it was submitted, can only be assessed on the facts, matters and circumstances within the knowledge of the publisher and the publisher’s conduct. Mr Murdoch relied, in support of those submissions, on the reasoning of various decisions in respect of the defence under s 30 of the Defamation Act. For the reasons I have essentially already given, I do not agree that the facts pleaded in paragraphs 1 to 16 are necessarily irrelevant to a determination of whether the Crikey article concerned an issue of public interest. In my view, it is at the very least arguable that the facts pleaded in paragraphs 1 to 16 may, if proved (or admitted), rationally affect the assessment of whether the Crikey article concerned an issue of public interest for the purposes of s 29A(1)(a) of the Defamation Act. That is a fact in issue in the pleading, it being denied in Mr Murdoch’s reply.

Evidence

Evidence Before The Court

But what of the case where the issues with which the publication was concerned are not issues that are obviously or self-evidently of public interest? Or, perhaps more importantly, what of the case where the surrounding facts and circumstances which were said to demonstrate that the issues were of public interest could not be said to be “not reasonably open to question” or matters of “common knowledge”?: see s 144 of the Evidence Act 1995 (Cth). It is at least arguable that in such a case, a defendant who wishes to rely on the defence in s 29A of the Defamation Act should be permitted to adduce evidence and seek to prove the surrounding facts and circumstances which were said to establish that the issues with which the publication was concerned were of public interest. If that is the case, particulars of those facts and circumstances plainly should be provided in the pleading. Mr Murdoch gave an example of such a case in his submissions. That example was a case where it was alleged that the publication concerned an issue of public interest on the basis that it concerned a public figure, but there was a dispute about whether the person in question was in fact a public figure. In such a case, it would appear to be open to the defendant to adduce evidence in an endeavour to prove that the person had, by her or his activities, assumed a public persona such that her or his activities, even her or his private activities, might be regarded as being the subject of public interest: see, for example, John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364. Such a factual issue could not be resolved by assumed knowledge or judicial notice. The example given by Mr Murdoch, perhaps unwittingly, tends to support the proposition that evidence of surrounding facts and circumstances may be relevant and admissible in respect of the question whether an allegedly defamatory article concerned issues of public interest. If evidence which tended to demonstrate that the person in question was a public figure was relevant and admissible, why would evidence of other facts relevant to the question of public interest, if disputed, not equally be relevant and admissible? It might be added that, while the decision in Hitchcock must be approached with some caution because it involved defences in the former Defamation Act 1974 (NSW) which, while they included the element of public interest, differed in material respects from s 29A of the Defamation Act, it is nevertheless noteworthy that the New South Wales Court of Appeal in that case overturned the decision of the primary judge to strike out those defences. Ipp JA observed (at [9]) that the legal principles relating to the element of public interest could “only be determined once the factual issues are crystallised” and that it was “premature and undesirable to express any opinions about those legal principles” in the context of a strike out application. McColl JA (with whom Tobias JA relevantly agreed) also reasoned (at [178]) that, in essence, the extent to which the plaintiff had made her private life a matter of public interest was a matter to be determined at trial, at least where there was “arguably a factual basis” for the defendant’s argument.

Decision

Reasons for decision

I am not, however, presently persuaded that that deficiency in paragraph 42 is such as to warrant the striking out of the defence. Despite the ambiguity, I find it difficult to accept that Mr Murdoch is genuinely unable to understand the defence as pleaded. Moreover, in my view, any ambiguity or confusion arising from the way the defence has been pleaded could readily be remedied by the provision of particulars which clearly identify which of paragraphs 1 to 22 are relied on in respect of which elements of the pleaded defence under s 29A of the Defamation Act. I appreciate that the evidence before me discloses that Mr Murdoch’s solicitor has in the past written to Crikey’s solicitor and sought clarification of the defence as pleaded. The replies to that correspondence have, for the most part, been unhelpful. I would, if necessary, order Crikey’s solicitor to provide appropriate clarification of the defence if that clarification is not forthcoming following the publication of this judgment.Conclusion in respect of paragraphs 1 to 22 and 42 of the defence I am not, in all the circumstances, persuaded that it is necessary or appropriate to strike out any of paragraphs 1 to 22 or 42 of Crikey’s defence. In particular, I am not satisfied that the facts pleaded in paragraphs 1 to 16 of the defence are demonstrably irrelevant to Crikey’s public interest defence, as contended by Mr Murdoch. In my view, it is at least reasonably arguable that those paragraphs are relevant to the question whether the Crikey article concerned an issue or issues of public interest under s 29A(1)(a). I am also not persuaded that any of paragraphs 1 to 22 or 42 are sufficiently evasive or ambiguous to warrant being struck out. Nor are any of those paragraphs, considered separately or together, likely to cause prejudice, embarrassment or delay in the proceeding. In my view, while Crikey’s pleading of the public interest defence may not be perfect or ideal, paragraphs 1 to 22 and 42 of the defence, fairly read, disclose a reasonably arguable defence. I should finally add that many of the legal issues that Mr Murdoch raised in respect of the scope and operation of the defence in s 29A of the Defamation Act are issues that should properly be addressed on a final basis once the evidential and factual issues have been crystallised at the trial. I have expressed a view about the operation of s 29A so as to resolve the current interlocutory dispute. A final and decisive decision as to the operation of the defence should await the trial. SHOULD CRIKEY’S LANGE DEFENCE BE STRUCK OUT? Crikey’s Lange defence in paragraph 43 of the defence is pleaded in terms which, to say the very least, are less than ideal. I am nevertheless not persuaded that the defence should be struck out. In my view, the deficiencies in the pleading can fairly and more efficiently be remedied by the provision of further particulars. I do not propose to discuss the elements or parameters of the Lange defence. Neither of the parties addressed the nature of the defence in their submissions.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.