McMahon v John Fairfax Publications Pty Limited (No 7) [2013] NSWSC 933

Supreme Court New South Wales

Medium Neutral Citation: McMahon v John Fairfax Publications Pty Limited (No 7) [2013] NSWSC 933 Hearing dates: 7-10, 13-17, 20-24, 27-29 February; 1, 2, 5-9, 12, 13 March; 4 April; 8 August 2012 Decision date: 15 July 2013 Before: McCallum J Decision: Defendants' motion for leave to reopen proceedings to make submissions dealing with plaintiff's standing to bring proceedings or to claim special damages dismissed Plaintiff's damages determined in the amount of $300,000 Catchwords: BANKRUPTCY - plaintiff bankrupt at time of publication of defamatory articles by defendants and at time of commencement of proceedings - whether plaintiff had standing to bring proceedings including claim for special damages - whether right to prosecute action vested in trustee in bankruptcy

PRACTICE AND PROCEDURE - issue of plaintiff's standing to bring proceedings not pleaded in defence - application brought after conclusion of jury trial and hearing as to damages for leave to re-open proceedings to submit plaintiff had no standing - need to amend defence - factors relevant to exercise of discretion to grant leave to re-open case

DEFAMATION - damages - approach to assessment where defendants successful in establishing truth of some of plaintiff's imputations and contextual imputations - claim for economic loss - whether caused by publication of matter complained of - aggravated damages Legislation Cited: Bankruptcy Act 1966 (Cth) Civil Procedure Act 2005 Conveyancing Act 1919 Corporations Act 2001 (Cth) Defamation Act 2005 Legal Profession Act 2004 Real Property Act 1900 Uniform Civil Procedure Rules Cases Cited: Ahmadi v Fairfax Media Publications Pty Limited [2010] NSWSC 702 Besser v Kermode [2011] NSWCA 174 Bryant v Commonwealth Bank of Australia [1997] FCA 582; (1997) 75 FCR 545 Carson v John Fairfax & Sons Limited & Slee [1993] HCA 31; (1993) 178 CLR 44 Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; 193 CLR 519 Davis v Nationwide News Pty Limited [2008] NSWSC 693 Faulkner v Bluett [1981] FCA 3; (1981) 52 FLR 115 Hughes v Mirror Newspapers Limited (1985) 3 NSWLR 504 John Fairfax Publications Pty Limited v Zunter [2006] NSWCA 227 Mannigel v Hewlett Phelps [1991] NSWCA 186 McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196 McMahon v John Fairfax Publications Pty Limited (No 4) [2012] NSWSC 216 McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224 Moss aka Miller v Reimer Winter Williamson Lawyers (No 2) (New South Wales Supreme Court, Rothman J, 13 November 2009, unreported) Moss v Eaglestone [2011] NSWCA 404; (2011) 285 ALR 656 Mundine v Brown [2010] NSWSC 1285 Nationwide News Pty Limited v Rogers [2002] NSWCA 71 Ord v Upton [2000] Ch 352 Rogers v Nationwide News Pty Limited [2003] HCA 52; (2003) 216 CLR 327 Triggell v Pheeney (1951) 82 CLR 497 Category: Principal judgment Parties: Bryan McMahon (plaintiff) John Fairfax Publications Pty Limited (first defendant) Marcus Priest (second defendant) Rachel Nickless (third defendant) Representation: B McClintock SC, K Andronos (plaintiff) ATS Dawson, L Brown (defendants) Ardent Lawyers (plaintiff) Banki Haddock Fiora Lawyers (defendants) File Number(s): 2008/289210 Publication restriction: None