Carney v Fairfax Media Publications Pty Limited [2016] NSWSC 1246

Supreme Court New South Wales

Medium Neutral Citation: Carney v Fairfax Media Publications Pty Limited [2016] NSWSC 1246 Hearing dates: 2 September 2016 Date of orders: 02 September 2016 Decision date: 02 September 2016 Jurisdiction: Common Law Before: McCallum J Decision: Imputations ruled to be capable of arising; proceedings referred to mediation in a manner agreed upon by the parties, failing which a court-annexed mediation Catchwords: DEFAMATION – imputations – whether capable of arising from matter complained of – no question of principle Category: Procedural and other rulings Parties: Sandra Carney (plaintiff) Fairfax Digital Australia and New Zealand Pty Ltd (first defendant) Federal Capital Press Australia Pty Ltd (second defendant) Representation: Counsel: R Weaver (plaintiff) ATS Dawson (first defendant)

Solicitors: Slater and Gordon Lawyers (plaintiff) Banki Haddock Fiora (first defendant) File Number(s): 2016/192762 Publication restriction: None

Judgment 1. HER HONOUR: These are proceedings for defamation arising out of the publication of an article online and in print reporting upon the outcome of a claim by the plaintiff for workers' compensation. The proceedings are before the Court today for their first listing (adjourned), as contemplated by the practice note SC CL 4. 2. The argument proceeded by reference to an amended statement of claim filed 29 August 2016. The matter complained of provides a careful account of a ruling of the Administrative Appeals Tribunal relating to a claim by the plaintiff for psychological injury arising out of an incident described in the matter complained of in terms which would plainly be understood by the ordinary reasonable reader to describe a minor workplace disagreement. 3. The plaintiff contends that the matter complained of conveys the following imputations defamatory of her: (a) the plaintiff brought a spurious workplace injury claim in the AATA following a workplace incident on 17 January 2014; (b) the plaintiff brought a series of spurious workplace injury claims against CommCare over a period of 20 years; (d) the plaintiff is a malingerer; (e) the plaintiff exploited the Commonwealth Workplace Compensation System. 1. A fifth imputation pleaded in the amended statement of claim (imputation (c)) was not pressed. Mr Dawson submitted that none of those imputations is reasonably capable of arising from the matter complained of. The argument faced a particular difficulty in respect of the online publication which included, in addition to the carefully worded discussion in the article, the following comment by a reader: They need to amend the rules to prevent people like this from exploiting the compensation that's offered for genuine workplace injuries. Taxpayers should not be subsidising malingerers or people with sensitive dispositions. 1. In my view the inclusion of the comment is fatal to the challenge to the capacity of the online publication to convey the imputations specified by the plaintiff. 2. The comment was not included in the two print articles. After hearing from Mr Weaver for the plaintiff, however, I have been persuaded that those two articles are also capable of conveying the imputations, if just barely. 3. The matter complained of is, perhaps implicitly, critical of the plaintiff in ways which the ordinary reasonable reader might be taken to discern. Perhaps the high point for the plaintiff is the inclusion in the opening paragraphs (explaining the plaintiff's successful appeal in the tribunal) of a reference to her having "a history of workplace conflict and of lodging claims against Federal workplace insurer CommCare going back 20 years". 4. That additional information within the opening paragraph may be understood to be gratuitous and to suggest a measure of disingenuity rather than oversensitivity on the part of the plaintiff in her claims for compensation. With some equivocation, I have concluded that all of the matters claimed of are capable of conveying the imputations and that they should go to the jury. 5. I do think, however, that this is a claim which I should refer to mediation immediately, for a number of reasons. First, as will be clear from the reasons I have just published, I think at least in respect of the two printed articles the claim that the defamatory imputations are conveyed could not be described as a strong one. Secondly, it is plain on the face of the article that there may well be a respectable defence of fair report of legal proceedings. Thirdly, because the nature of the allegations which will necessarily be litigated in the proceedings may itself be such as to impose stress on a person who, according to the report, is prone to suffer from stress. 6. For those reasons it would be vastly preferable if these proceedings could be resolved if that is possible. I refer the proceedings to mediation in a manner agreed upon by the parties, failing which a court-annexed mediation. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2016