McFarlane v Nationwide News Pty Ltd [2014] NSWSC 1574

Supreme Court New South Wales

Medium Neutral Citation: McFarlane v Nationwide News Pty Ltd [2014] NSWSC 1574 Hearing dates: 17 October 2014 Decision date: 31 October 2014 Before: McCallum J Decision: Defendant's strike-in application refused Catchwords: DEFAMATION - pleading - where matter complained of consisting of 3 articles published on the same pages of the newspaper - application by defendant to strike in a fourth article published on the same page - entitlement of plaintiff to choose mode of pleading Cases Cited: Australian Broadcasting Corporation v Obeid (2006) NSWCA 231 Phelps v Nationwide News Pty Limited 2001 NSWSC 130 Category: Interlocutory applications Parties: Katherine McFarlane (plaintiff) Nationwide News Pty Ltd (defendant) Representation: Counsel: T Molomby (plaintiff) L Mullins (defendant) Solicitors: TK Legal (plaintiff) News Ltd (defendant) File Number(s): 2014/269526 Publication restriction: None

Judgment 1HER HONOUR: These are proceedings for defamation commenced by Katherine McFarlane against Nationwide News Pty Limited in respect of a series of articles published in the same newspaper on the same day. The defendant contends that a further article appearing on the same page as a number of the articles sued on ought also to be included as part of the matter complained of and accordingly seeks an order striking that material in. 2At the outset of the argument, which was heard on the first listing of the proceedings in the defamation list, Ms Mullins, who appears for Nationwide News, informed the court that publication is not in dispute and provided to the Court an admission as to the circulation of The Daily Telegraph on the relevant day. I wish to acknowledge the appropriateness of her having done so. It is exactly the approach intended to be encouraged by the recently revisions to the practice note that governs the defamation list (SC CL 4). 3The argument proceeded by reference to copies of the relevant pages of the newspaper, which reveal that the plaintiff has pleaded, as a single matter complained of, three separate articles. The first appeared on the front page of The Daily Telegraph. That article directs the reader, at the conclusion of the material appearing there, to the "full report pages 4 to 5". 4The second, under the heading, "A Minister's minefield as conflict kept below surface" was spread over pages 4 and 5 of the paper. The third, under the heading, "Problems arise as an attack backfires" appears on the right-hand column of page 5. 5The material sought to be struck in by Nationwide News is a further article appearing on page 4, being an article under the heading, "District loses out, but that's okay in a one pub town". 6The subject matter of the articles was a decision of the Minister for Planning, for whom the plaintiff worked as chief of staff. According to the newspaper articles, the decision put an end to the proposed expansion of a mining site in an area where the plaintiff owns property. 7Nationwide News contends that the additional article would have been read by the ordinary reasonable reader in conjunction with the matter complained of. It further submits that the additional article is capable of affecting the sense of the matter complained of, since it provides the following relevant information: that 75% of the town was against the mine; that the mine's northern tip would have been a few kilometres from the plaintiff's property; that a rocky ridge separated the plaintiff's property from the valley where the mine expansion was proposed; that the plaintiff's husband had stated that he and the plaintiff had never discussed the project, despite its proximity to their property; and that the plaintiff's husband had attended on his own a single community meeting called to discuss the mine seven months earlier. 8The article attributed to the plaintiff's husband the following statements: "We are smack bang in the middle of mines" and "If we're concerned about that sort of stuff, we wouldn't live out here". 9The proposition that the information provided in the additional article is capable of informing the impression likely to be derived by the ordinary reasonable reader from the matter complained of may be accepted without equivocation. The question is whether, according to principle, it follows that the plaintiff can be compelled to include the additional article in the matter complained of. 10The principles to be applied in determining a strike-in application were explained by Simpson J with her Honour's customary clarity in Phelps v Nationwide News Pty Limited [2001] NSWSC 130. In that decision, her Honour noted the variety of possible ways in which defamatory material can be pleaded by a plaintiff. After considering the relevant authorities, her Honour said (at [21] to [22]): The above review of the cases drawn to my attention illustrates the diversity of the circumstances which might give rise to considerations of whether separate but related publications should properly be regarded as one. Related publications may be distinct items contained in a single edition of, for example, a newspaper (Rakimov, Lucas); or may be contained in successive daily or weekly (or other) editions of the same publication (Burrows). No doubt many other situations will arise. One example that comes to mind is the publication of a news item illustrated by a photograph, or a cartoon. Others are episodic items, broadcast on radio or telecast, separated by advertisements or by unrelated segments. Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field. 11Her Honour's statement of the relevant principles was approved by the Court of Appeal in Australian Broadcasting Corporation v Obeid [2006] NSWCA 231 at [69] per Tobias JA; Hodgson and Ipp JJA agreeing at [1] and [10]. 12It follows from a consideration of those principles that the defendant faces a high hurdle in the present application. In my view, whilst it would plainly have been open to the plaintiff to add the additional article to the matter complained of by her as a single publication, it cannot be concluded that her chosen mode of pleading only three of the four articles to which I have referred is untenable for one of the reasons identified by Simpson J in Phelps at [22]. 13I would note that, in my view, the existence of the additional article and the extent to which it is capable of informing the defamatory meaning of the matter complained of by the plaintiff is a factor that could be relied upon by the defendant as going to the issue of damages, at least. The defendant, I would think, could tender that article on the damages hearing to support the proposition that, to the class of readers who read not only the matter complained of but also the additional article, the damage to the plaintiff's reputation was likely to be less. 14However, for the reasons I have stated, it does not follow that the plaintiff can be compelled to include that article in the matter complained of by her. For those reasons, the application to have material struck in to the statement of claim is dismissed.