Duma v Fairfax Media Publications Pty Limited (No 3) [2023] FCA 47

FEDERAL COURT OF AUSTRALIA

Duma v Fairfax Media Publications Pty Limited (No 3) [2023] FCA 47 File number: NSD 420 of 2020

Judgment of: KATZMANN J

Date of judgment: 7 February 2023

Catchwords: DEFAMATION – series of feature articles by two journalists about corruption in Papua New Guinea (PNG) – where articles related to grant of petroleum licence, activities of an ASX-listed company and PNG cabinet minister – where Minister alleged articles conveyed imputations that he had acted corruptly and illegally in several respects – whether one or more of the pleaded imputations were conveyed DEFAMATION – defence of statutory qualified privilege – whether conduct of respondents in publishing the matters complained of was reasonable in the circumstances, having regard to the considerations in s 30(3) of the uniform defamation legislation – where no defence of justification or contextual truth was pleaded, whether "the objective truth" was relevant to the reasonableness of the respondents' conduct DEFAMATION – damages – extent of damages for non-economic loss – whether aggravated damages should be awarded – whether material relied on by publisher constitutes "directly relevant background context" which would mitigate damages in accordance with the principle in Burstein v Times Newspapers Ltd [2000] EWCA Civ 338; [2001] 1 WLR 579 and, if so, to what extent – whether, even if the material could mitigate damages, it was open to respondents to rely on it for that purpose in the light of their pleading PRIVATE INTERNATIONAL LAW – where, in defamation proceeding, publication occurred in both Australia and PNG, whether s 11 of the Defamation Act 2005 (NSW) precludes recovery of damages for harm occasioned in PNG or requires applicant to sue in PNG EVIDENCE – where documents provided to respondents by confidential source were tendered for all purposes, whether, in light of respondents' pleading and cross-examination and where source was not called to give evidence, the use to which the documents could be put should be limited to proof of reasonableness of respondents' conduct for purposes of qualified privilege defence