Kelly v Fairfax Media Publications [2012] NSWSC 690

Supreme Court New South Wales

Medium Neutral Citation: Kelly v Fairfax Media Publications [2012] NSWSC 690 Hearing dates: 11 May 2011 Decision date: 22 June 2012 Before: McCallum J Decision: Plaintiff granted leave to replead in accordance with these reasons. Catchwords: DEFAMATION - pleading - objections as to capacity and form of proposed imputations - no question of principle Legislation Cited: Defamation Act 1974 Commission Against Corruption Act 1988 Cases Cited: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Singleton v Ffrench (1986) 5 NSWLR 425 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 Category: Interlocutory applications Parties: Andrew Kelly (plaintiff) Fairfax Media Publications Pty Limited (first defendant) Fairfax Digital Australia and New Zealand Pty Limited (second defendant) Representation: Counsel: K Andronos (plaintiff) M Polden (defendants) Solicitors: Somerset Ryckmans (plaintiff) Johnson Winter & Slattery (defendants) File Number(s): 2010/425752 Publication restriction: None

Judgment 1These are proceedings for defamation commenced against the proprietors of the Sydney Morning Herald in its print and Internet editions. This judgment determines a series of objections taken by the defendants to the imputations sought to be relied upon by the plaintiff. 2By agreement between the parties, argument on the objections proceeded by reference to a form of imputations propounded for inclusion in a proposed amended statement of claim. It was common ground that the test to be applied in determining whether to allow each proposed imputation was no different from the approach that would be taken to an application to have an imputation struck out of an existing pleading. 3As to objections on the grounds of capacity, the test is whether the imputation is reasonably capable of being conveyed by the matter complained of. Some guidance as to the application of that test may be found in the decision of the High Court in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 where the High Court said (at [17] per Gleeson CJ, McHugh, Gummow and Heydon JJ; Kirby J agreeing "generally"): Ultimately, the question is what a jury could properly make of it. 4As to objections based on the form of an imputation, the test is whether the imputation has a tendency to cause embarrassment in the proceedings. An ambiguous imputation is liable to be struck out on that basis: Singleton v Ffrench (1986) 5 NSWLR 425 (at 433G per McHugh JA; Samuels JA agreeing at 427C; Mahoney JA not deciding). That is the case even though the imputation may be pleaded in the very words published by the defendant: Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155E per Hunt J. In practical terms, the issue is "whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends": Whelan at 155F. 5The plaintiff sues on five articles published over four days. Each article was published in the same or substantially the same form in print and on the Internet. The parties agreed that the Court's rulings in respect of the print versions of the articles would govern the pleading of the Internet publications. 6The subject matter of the first article was Mr Kelly's involvement, whilst he was a senior official at the Sydney Harbour Foreshore Authority, in the grant of a lease of a waterfront commercial property to the Kazal family. The article alleged that the Kazals took control of the lease "while secretly providing incentives" to Mr Kelly. The later articles addressed various different aspects of that basic theme. 7There was a measure of conflation in the defendants' objections. I have endeavoured to distil what I understood to be the essential points.