Murdoch v Private Media Pty Ltd (No 5) - [2023] FCA 440

FEDERAL COURT OF AUSTRALIA
Murdoch v Private Media Pty Ltd (No 5) [2023] FCA 440

File number: NSD 673 of 2022

Judgment of: WIGNEY J

Date of judgment: 4 April 2023

Catchwords:
PRACTICE AND PROCEDURE – application by respondents for extension of time to file defence – Court’s broad discretion under r 1.39 of the Federal Court Rules 2011 (Cth) – respondents’ recent access to potentially relevant material disclosed in United States proceedings – consideration of delay, prejudice and preservation of current trial date – respondents’ delay adequately explained and no material prejudice to applicant – order for extension of time to file defence

DEFAMATION – application by applicant for separate determination of defamatory meaning – limited availability of the Court to separately hear and determine issue of defamatory meaning before trial – prospect of appeal of any judgment concerning defamatory meaning and its impact on current trial date – application dismissed

Legislation:
Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) rr 1.39, 16.07, 26.11

Defamation Act 2005 (NSW) s 26(1)(b)

Cases cited:
Edwards v Nine Network Australia Pty Ltd [2022] FCA 509

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303

Hawkins v Kingsway Group Ltd [2009] FCA 1073

Murdoch v Private Media Pty Ltd (No 4) [2023] FCA 114

Pfizer Ireland Pharmaceuticals v Samsung Bioepis Au Pty Ltd [2017] FCA 573

Skinner v Commonwealth of Australia [2012] FCA 1194

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 47

Date of hearing: 4 April 2023

Counsel for the Applicant: Ms S Chrysanthou SC

Solicitor for the Applicant: Churchill Lawyers

Counsel for the Respondents: Mr M Hodge KC and Ms C Amato

Solicitor for the Respondents: Marque Lawyers

ORDERS

NSD 673 of 2022

BETWEEN:
LACHLAN KEITH MURDOCH

Applicant

AND:
PRIVATE MEDIA PTY LTD (ACN 102 933 362)

First Respondent

BERNARD KEANE
Second Respondent

PETER FRAY
Third Respondent

ERIC BEECHER
Fourth Respondent

WILLIAM HAYWARD
Fifth Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

4 APRIL 2023

THE COURT ORDERS THAT:
1.The time for the respondents to file their defence to the amended statement of claim be extended to 4.00pm on 11 April 2023.
2.The time for the applicant to file and serve any reply to the respondents’ defence be extended to 4.00pm on 2 May 2023.
3.The first, second and third respondents be granted leave, pursuant to r 26.11 of the Federal Court Rules 2011 (Cth), in respect of the withdrawal of the admissions at 27.22, 27.29, 27.32, 28.2, 28.10, 38, 39, 40 and 41 of the defence.
4.The applicant’s interlocutory application dated 23 March 2023 be dismissed.
5.The costs of both the respondents’ interlocutory application of 7 March 2023 and the applicant’s interlocutory application of 23 March 2023 be reserved and be the subject of further submissions in due course.

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

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: [2023] FCA 440
Decision Date: 4 April 2023

CaseChat Overview and Summary

Murdoch v Private Media Pty Ltd (No 5) involved the applicant, Rupert Murdoch, and the respondents, Private Media Pty Ltd and others. The dispute centred on defamation claims, and the case was heard in the Federal Court of Australia. The respondents sought an extension of time to file their defence due to their recent access to potentially relevant material disclosed in United States proceedings. The applicant opposed this extension, arguing it would prejudice the trial date. Additionally, the applicant sought a separate determination of the defamatory meaning of certain words in the claim before the trial.

The court addressed the legal issues by considering the factors under rule 1.39 of the Federal Court Rules 2011 (Cth), including the delay, any prejudice to the applicant, and the preservation of the current trial date. The court found that the delay was adequately explained, and there was no material prejudice to the applicant. Consequently, the court granted the respondents' application for an extension of time to file their defence. The court also dismissed the applicant's separate application for a determination of the defamatory meaning, noting the limited availability of the court to hear such issues separately before the trial and the prospect of an appeal affecting the trial date.

The court made specific orders to extend the time for the respondents to file their defence to 4.00pm on 11 April 2023 and for the applicant to file any reply to the respondents' defence to 4.00pm on 2 May 2023. It also granted the respondents leave to withdraw certain admissions and dismissed the applicant’s interlocutory application. The costs of the interlocutory applications were reserved for further submissions.

Orders

Orders of the court

1. The time for the respondents to file their defence to the amended statement of claim be extended to 4.00pm on 11 April 2023.

2. The time for the applicant to file and serve any reply to the respondents’ defence be extended to 4.00pm on 2 May 2023.

3. The first, second and third respondents be granted leave, pursuant to r 26.11 of the Federal Court Rules 2011 (Cth), in respect of the withdrawal of the admissions at 27.22, 27.29, 27.32, 28.2, 28.10, 38, 39, 40 and 41 of the defence.

4. The applicant’s interlocutory application dated 23 March 2023 be dismissed.

5. The costs of both the respondents’ interlocutory application of 7 March 2023 and the applicant’s interlocutory application of 23 March 2023 be reserved and be the subject of further submissions in due course.

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

Background

Background to the litigation

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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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File number:	NSD 673 of 2022
Judgment of:	WIGNEY J
Date of judgment:	4 April 2023
Catchwords:	PRACTICE AND PROCEDURE – application by respondents for extension of time to file defence – Court’s broad discretion under r 1.39 of the Federal Court Rules 2011 (Cth) – respondents’ recent access to potentially relevant material disclosed in United States proceedings – consideration of delay, prejudice and preservation of current trial date – respondents’ delay adequately explained and no material prejudice to applicant – order for extension of time to file defence DEFAMATION – application by applicant for separate determination of defamatory meaning – limited availability of the Court to separately hear and determine issue of defamatory meaning before trial – prospect of appeal of any judgment concerning defamatory meaning and its impact on current trial date – application dismissed
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) rr 1.39, 16.07, 26.11 Defamation Act 2005 (NSW) s 26(1)(b)
Cases cited:	Edwards v Nine Network Australia Pty Ltd [2022] FCA 509 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 Hawkins v Kingsway Group Ltd [2009] FCA 1073 Murdoch v Private Media Pty Ltd (No 4) [2023] FCA 114 Pfizer Ireland Pharmaceuticals v Samsung Bioepis Au Pty Ltd [2017] FCA 573 Skinner v Commonwealth of Australia [2012] FCA 1194
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	47
Date of hearing:	4 April 2023
Counsel for the Applicant:	Ms S Chrysanthou SC
Solicitor for the Applicant:	Churchill Lawyers
Counsel for the Respondents:	Mr M Hodge KC and Ms C Amato
Solicitor for the Respondents:	Marque Lawyers

ORDER MADE BY:	WIGNEY J
DATE OF ORDER:	4 APRIL 2023