Federal Court of Australia

Murdoch v Private Media Pty Ltd [2022] FCA 1275

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 22 September 2022 be dismissed.

2.    The respondents’ interlocutory application dated 5 October 2022 be dismissed.

3.    The costs of, and associated with, the interlocutory applications be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

WIGNEY J:

1    Crikey is a news website and online newsletter published by Private Media Pty Ltd. The Crikey website and associated social media accounts recently featured an article authored by Mr Bernard Keane. That article mostly concerned evidence given at a United States congressional inquiry into former US President Donald Trump’s apparent role in inciting his disgruntled supporters to storm the Capitol in the aftermath of his unsuccessful tilt at a second term as president. Towards its end, the article asserted that Mr Trump had the “support of the world’s most powerful media company” in “peddl[ing] the lie of the stolen election”. Having noted, in that context, that Richard Nixon was “famously” the “unindicted co-conspirator” in the Watergate scandal, the article concluded thus: “The Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis”. That rather hyperbolic observation or assertion also came to form part of the headline to the article.

2    Mr Lachlan Murdoch is a senior executive of Fox Corporation, which has a substantial interest in various large media companies, including Fox News Network, LLC. Some would call him a media mogul, though that would be rather trite. The aforementioned Crikey article prompted Mr Murdoch to sue Private Media, Mr Keane and the editor-in-chief of Crikey, Mr Peter Fray, for defamation. Mr Murdoch claims that the Crikey article conveyed a number of defamatory imputations about him, including, for example, that he “illegally conspired with Donald Trump to overturn the 2020 presidential election result” and that he “illegally conspired with Donald Trump to incite a mob with murderous intent to march on the Capitol”. Mr Murdoch says that the article caused serious harm to his reputation.

3    The proceeding is at an early stage. Private Media, Mr Keane and Mr Fray, who I will generally refer to collectively as Crikey, have filed a defence to Mr Murdoch’s statement of claim. Mr Murdoch has filed a reply to Crikey’s defence. As unfortunately often happens in defamation cases, the parties are squabbling about the pleadings. They have filed duelling interlocutory applications attacking various parts of each other’s pleadings. Mr Murdoch objects to certain paragraphs in Crikey’s defence and claims that those paragraphs should be limited in effect or be struck out. Crikey contends that a paragraph of Mr Murdoch’s reply should be struck out.

4    The key issue raised by Mr Murdoch’s interlocutory application concerns the manner in which Crikey has pleaded two positive defences to his claim: a “public interest” defence under s 29A of the Defamation Act 2005 (NSW) and the so-called “Lange” defence of qualified privilege, being the defence based on the decision of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Mr Murdoch contended that the manner in which those defences have been pleaded is evasive, ambiguous, likely to cause prejudice, embarrassment or delay in the proceeding, or failed to disclose a reasonable defence. His main complaint in that regard is that the defences, as pleaded, rely on a number of alleged facts the objective truth of which, so Mr Murdoch claimed, cannot be relevant to the elements of the defences. Mr Murdoch also contended that some paragraphs of Crikey’s defence concerning mitigation of damages are deficient or defective.

5    The key issue raised by Crikey’s interlocutory application concerns Mr Murdoch’s reply to its defence of public interest under s 29A of the Defamation Act. In his reply, Mr Murdoch alleges, among other things, that in publishing the article in question, Crikey was “actuated by malice”. Crikey contended, in substance, that a plea of malice cannot defeat a defence under s 29A of the Defamation Act.

6    These interlocutory disputes must be resolved expeditiously if the current trial date is to be preserved. It is, in those circumstances, necessary for me to deal with the issues raised by the applications, some of which raise difficult questions of statutory construction, in terms shorter than would ordinarily be the case.

7    For the reasons that follow, I am not persuaded that it is appropriate to strike out any paragraphs of Crikey’s defence or Mr Murdoch’s reply. I am not satisfied that the impugned paragraphs are sufficiently evasive or ambiguous to warrant being struck out. Nor am I satisfied that they are likely to cause prejudice, embarrassment or delay in the proceeding. More fundamentally, I am not persuaded that Crikey’s public interest defence, or any part of it, should be struck out on the basis that no reasonable defence is disclosed.

8    I am also of the view that the issues that have been raised in the context of the parties’ interlocutory applications, particularly those relating to Crikey’s public interest defence, are issues that are more appropriately determined on a final basis at trial. This is not just a matter of kicking the proverbial can down the road. Rather, in my view, while the manner in which those defences is pleaded is far from ideal, the legal issues raised by the defences are more appropriately determined when the factual issues relevant to them have crystallised at trial. It would in particular be more appropriate to consider the operation of the public interest defence in s 29A of the Defamation Act on the basis of the facts as found at trial rather than in the abstract at this interlocutory stage.

9    I will first address Mr Murdoch’s complaints about Crikey’s defence.

Crikey’s defence

10    Before addressing Mr Murdoch’s specific complaints, it is necessary to provide some context by giving a brief overview of Crikey’s defence as pleaded.

11    Shortly prior to the hearing of the interlocutory application, Crikey furnished a proposed amended version of its defence. The proposed amended defence has not yet been filed, though the parties agreed that it should be treated as Crikey’s defence for the purpose of the determination of this interlocutory dispute. I will, unless the context otherwise requires, refer to the proposed amended defence as Crikey’s defence, though it will in due course be necessary to consider whether it is appropriate to grant Crikey leave to file the proposed amended defence.

12    The critical elements of Crikey’s defence can be shortly summarised as follows.

13    First, Crikey denies that the article conveyed the defamatory imputations alleged by Mr Murdoch. This aspect of Crikey’s defence is not subject to any interlocutory challenge. It will no doubt be a live issue to be determined at trial.

14    Second, Crikey denies that the article caused, or is likely to cause, serious harm to Mr Murdoch’s reputation. That denial is relevant because s 10A of the Defamation Act provides that it is “an element … of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person”. In his submissions, Mr Murdoch heaped scorn upon this aspect of Crikey’s defence, however it is not challenged on an interlocutory basis and remains a serious issue to be determined at trial.

15    Third, Crikey relies on the defence in s 29A of the Defamation Act and asserts that the publication of the article was in the public interest and that it reasonably believed that to be the case: paragraph 42 of the defence. As already noted, Mr Murdoch’s main objection to Crikey’s defence concerned the manner in which this statutory defence has been pleaded. His main complaint concerned the fact that the plea in paragraph 42 is prefaced by the words: “[b]y reason of the matters set out at [1]-[22] above”. Mr Murdoch contended that Crikey’s apparent reliance on the facts pleaded in paragraphs 1 to 22 of the defence was at best ambiguous and confusing and, at worst, misconceived, given the elements of the public interest defence in s 29A of the Defamation Act.

16    Fourth, Crikey relies on the Lange defence of qualified privilege based on the implied constitutional freedom of communication about government or political matters: paragraph 43 of the defence. Mr Murdoch also challenged the manner in which that defence is pleaded. Mr Murdoch’s main complaint again concerned the fact that the plea again relied on the facts pleaded in paragraphs 1 to 22, though that complaint fell away to a certain extent as a result of the proposed amendments to the defence.

17    Fifth, Crikey relies on the defence in s 18 of the Defamation Act and alleges that Mr Murdoch failed to accept a reasonable offer to make amends. This aspect of Crikey’s defence is not subject to the present interlocutory challenge, though it is again readily apparent that it will be hotly contested at trial.

18    Sixth, the defence identifies a number of matters that Crikey will rely on in mitigation of damages: paragraph 37 of the defence. Mr Murdoch contended that Crikey’s plea in respect of mitigation should be struck out because the facts, matters or circumstances identified by Crikey either cannot properly be relied on in mitigation, or are inadequately particularised.

19    Seventh, it is relevant to note that the defence does not include any defence of justification under s 25 of the Defamation Act. Crikey does not contend that any of the alleged defamatory imputations, if carried, are substantially true.

20    As has already been noted, Mr Murdoch’s objections to Crikey’s pleaded public interest and Lange defences focus in particular on paragraphs 1 to 22 of the defence. It is accordingly necessary to give some closer attention to those paragraphs.

Paragraphs 1 to 16 of Crikey’s defence

21    Paragraphs 1 to 16 of Crikey’s defence appear under the subheading “Factual background”. They do not directly address or respond to any specific paragraphs of Mr Murdoch’s statement of claim. Mr Murdoch characterised them as “prefatory averments”.

22    Paragraphs 1 to 16 comprise a series of facts or assertions which relate to events surrounding the 2020 presidential election in the United States and its aftermath, including: the result of the election; claims made by some prominent people and commentators about the legitimacy of the result of the election; media coverage concerning those claims; the violent storming of the Capitol by supporters of Donald Trump on 6 January 2021; and evidence which had been given at a public inquiry concerning that incident shortly before the Crikey article was published.

23    Some of the facts recited in paragraphs 1 to 16 would plainly be regarded, at least by most rational people, to be incontrovertible: for example, “President Biden won 51.3% of the popular vote” and “Donald J Trump lost the 2020 Presidential Election”. Others might be considered, at least by some, to be somewhat more controversial or contentious: for example, “hosts and guests of Fox News repeatedly cast doubt on the outcome of the 2020 Presidential Election” and “[a]t no time to date have Rupert Murdoch, the Murdoch family generally as owners of Fox Corporation, or [Mr Murdoch], publicly repudiated the claims made by hosts and guests of Fox News” about the outcome of the election.

24    Mr Murdoch has not directly pleaded or responded to paragraphs 1 to 16 of the defence. In his reply, he indirectly “joins issue” with those paragraphs. He also asserts that they are “embarrassing and irrelevant to any fact in issue other than to the extent that they were matters in the mind of and believed by any of Private Media, Fray and/or Keane at the time of publication of the Article”. That, in essence, is the claim that he makes in support of his application to strike out those paragraphs.

Paragraphs 17 to 22 of Crikey’s defence

25    Paragraphs 17 to 22 of Crikey’s defence also appear under the “Factual background” subheading, but are of a different character to paragraphs 1 to 16. They essentially concern Mr Keane’s qualifications and experience, as well as his knowledge or beliefs leading up to the publication of the article. They also set out his asserted reasons for concluding the article by saying that the “Murdochs and their slew of poisonous Fox News commentators are the unindicted co-conspirators of this continuing crisis”.

26    Paragraph 17 refers to Mr Keane’s apparent impetus for writing the article and his consultations with Mr Fray. Paragraph 18 details Mr Keane’s qualifications and experience and says, in summary, that he had, as at the time of publication, read and written extensively about Donald Trump, Donald Trump’s claims about the outcome of the 2020 presidential election and the role of the media in reporting or propagating those claims. Paragraph 19 deals with Mr Keane’s reasons for including the impugned statement concerning the Murdochs and paragraph 20 contains assertions about Mr Keane’s and Mr Fray’s beliefs about how readers would read or interpret that statement. Paragraph 21 endeavours to explain why Mr Murdoch was not asked to comment on the article or the impugned statement. Paragraph 22 asserts that Crikey was “conscious of the importance of freedom of expression in the discussion of matters of public interest”.

Paragraph 42 – the public interest defence

27    As has already been noted, Crikey’s public interest defence pursuant to s 29A of the Defamation Act is pleaded in paragraph 42 of the defence. Since the public interest defence is the focus of Mr Murdoch’s interlocutory challenge, it is appropriate to set out paragraph 42 in full:

42.    By reason of the matters set out at [1]-[22] above, if the matter complained of is found to be defamatory in that it conveyed one or more of the Imputations, which is denied, the Respondents say:

42.1    the Article concerned Mr Trump’s conduct in connection with the election of November 2020, the state of American democracy, the polarisation within American politics borne out by the events of January 6, the media environment in which those events took place and, more broadly, the influence on electors and representative government of the global media conglomerates (being News Corporation and Fox Corporation) controlled by members of the Murdoch family, all of which were matters of public interest;

42.2    they reasonably believed that the publication of the matter was in the public interest; and

42.3    in the premises, publication of the Article was therefore in the public interest and defensible pursuant to s29A Defamation Act 2005 and its equivalents in the States and Territories.

(Mark-up in original omitted.)

Paragraph 43 – the Lange defence

28    Crikey’s Lange defence is pleaded in paragraph 43 of the defence. Paragraph 43 of the defence is in the following terms:

43.    Further, and in the alternative, if the matter complained of is found to be defamatory in that it conveyed one or more of the Imputations, which is denied, the Respondents say:

43.1    By reason of the matters at paragraphs at [1]-[22] and [42.1] above, that the matter related to governmental or political matters; and

43.2    By reason of the matters at [17]-[22] above, that the Respondents acted reasonably in publishing the matter; and

43.3    Therefore the matter was published on an occasion of qualified privilege, being the implied Constitutional freedom of communication about governmental or political matters (“Lange defence”).

(Mark-up in original omitted.)

Paragraph 37 of the defence – mitigation

29    As has been noted, Mr Murdoch seeks to strike out paragraph 37 of the defence.

30    Paragraph 37 of the defence identifies the facts, matters and circumstances upon which Crikey will rely in mitigation of damages should Mr Murdoch be found to be entitled to damages. They are: the “facts, matters and circumstances proven in support of the defences pleaded”; the “bad reputation” of Mr Murdoch; the “circumstances in which it is proved that the [article was] published”; and “such further matters as may be identified following discovery and interrogatories”.

31    In relation to the alleged bad reputation of Mr Murdoch, paragraph 37.3 of the defence particularises the bad reputation as: “in the sector of his [Mr Murdoch’s] reputation as co-Chair of News Corporation, Executive Chairman and CEO of Fox Corporation, a global media conglomerate which published, inter alia, Fox News, a conservative media channel providing biased reporting in favour of conservative political positions and News International, an organisation that engaged in systemic unethical practices in investigative reporting”.

MR MURDOCH’S OBJECTIONS TO CRIKEY’S DEFENCE

32    The orders sought by Mr Murdoch in his interlocutory application are as follows:

1.    Paragraphs 1-16 of the Defence filed on 20 September 2022 (Defence) be confined to matters within the belief or state of mind of the respondents as alleged in paragraphs 17-22 of the Defence, and not be questions of objective fact.

2.    Paragraphs 1-22 of the Defence be confined to matters going to the defences pleaded in paragraphs 42 and 43 of the Defence.

3.    The respondents, in accordance with Rule 16.07 FCR, re-plead paragraph 30 of the Defence to answer each allegation of fact in paragraph 8 of the Statement of Claim.

4.    Paragraph 37 of the Defence be struck out.

5.    The respondents file an Amended Defence, limited to reflecting orders 1-4 above.

6.    The respondents pay the Applicant’s costs of this application, including any costs occasioned by the filing of an Amended Defence.

33    In his submissions at the hearing of the interlocutory application, Mr Murdoch broadened his attack in respect of paragraphs 1 to 22 of the defence. He contended that paragraphs 1 to 16 of the defence should be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth). He claimed that those paragraphs were evasive, ambiguous, likely to cause prejudice, embarrassment or delay in the proceeding, or failed to disclose a reasonable defence. If paragraphs 1 to 16 of the defence are struck out, it would effectively follow that Crikey’s public interest and Lange defences in paragraphs 42 and 43 of the defence would also have to be struck out. As noted earlier, Mr Murdoch also contended that paragraph 37 of the defence, dealing with mitigation of damages, should be struck out, essentially on the basis that the particulars of the matters that Crikey alleged were relevant to mitigation of damages failed to disclose any proper or permissible plea in mitigation.

34    It is appropriate to first consider Mr Murdoch’s objections to Crikey’s public interest defence as pleaded. That necessarily involves a consideration of his complaints concerning paragraphs 1 to 16 of the defence.

Mr Murdoch’s objections to Crikey’s public interest defence

35    It would perhaps not be unfair to characterise some of the submissions that were advanced on Mr Murdoch’s behalf in respect of the objection to Crikey’s public interest defence as being, to put it colloquially, rather high, wide and handsome. The central contention, however, was that the “objective truth” of the facts pleaded in paragraphs 1 to 16 of the defence could not be relevant to any of the elements of the defence in s 29A of the Defamation Act. It was on that basis that he contended that paragraphs 1 to 16 should either be “confined to matters within the belief or state of mind of [Crikey] as alleged in paragraphs 17-22 of the Defence”, or otherwise struck out.

36    Mr Murdoch’s contention that the objective truth of the facts pleaded in paragraphs 1 to 16 of the defence was irrelevant to Crikey’s public interest defence was based in large part on what Mr Murdoch submitted was the proper construction of s 29A of the Defamation Act. He submitted, in essence, that s 29A of the Defamation Act did not operate in any materially different way to the defence of qualified privilege in s 30 of the Defamation Act. The relatively recent insertion of s 29A into the Defamation Act, according to Mr Murdoch, effectively achieved nothing and the media interests who had been pressing for reform had been “sold a pup”. Perhaps more significantly, Mr Murdoch submitted that there was authority for the proposition that the objective truth of the published matter was irrelevant to the defence of qualified privilege. That proposition, in Mr Murdoch’s submission, applied equally to the public interest defence.

37    Mr Murdoch’s submissions focussed in particular on the allegations in paragraphs 8 and 9 of the defence. Those paragraphs were, in Mr Murdoch’s submission, not only irrelevant to the public interest defence, but also contestable and contested. Mr Murdoch maintained that paragraphs 1 to 7 and 10 to 16 were also irrelevant to the public interest defence, but appeared to concede that the facts in those paragraphs were matters of common knowledge and were effectively incontestable.

38    Paragraphs 8 and 9 of the defence are as follows:

8.    From around 7 November 2020, hosts and guests of Fox News repeatedly cast doubt on the outcome of the 2020 Presidential Election and directly or indirectly promoted on air:

8.1    the allegations, without reasonable basis, of voter fraud made by Mr Trump;

8.2    the false claim that President Biden had not legitimately won, and Mr Trump had not lost, the 2020 Presidential Election.

9.    At no time to date have Rupert Murdoch, the Murdoch family generally as owners of Fox Corporation, or the applicant (Lachlan Murdoch), publicly repudiated the claims made by hosts and guests of Fox News alleged in the preceding paragraph.

39    Crikey has provided Mr Murdoch with further particulars of the publications that it proposes to rely on at trial to substantiate the allegation in paragraph 8. Those particulars were contained in a schedule which included details of statements made by presenters or guests on various programs aired on Fox News or related television channels, or in social media posts, between about November 2020 and January 2021. It suffices to give but a few examples, some of which were broadcast relatively shortly after the election in November 2020 and some closer to the events of 6 January 2021.

40    On 11 November 2020, someone named Tucker Carlson is recorded as having said the following during a segment of the program he hosted, “Tucker Carlson Tonight”:

It’s been more than a week since the final votes were cast and many of Donald Trump’s 72 million voters still believe this election was fundamentally unfair. They’re right about that. Democrats completely changed the way we voted in this election. Our system has never been more disorganised and it’s never been more vulnerable to manipulation.

41    A few days later, on 14 November 2020, someone named Jeanine Pirro, the host of a program called “Justice with Judge Jeanine”, is recorded as having said, among other things:

Why would the Democrats want to ban election observers as they count the ballots? Do they not think they could win honestly? Why were there so many unsolicited ballots without verification signatures? Ballots without postmarks? Why did a judge in Pennsylvania go outside his power to extend the deadline to receive mail-in ballots after the legislature? The only constitutional body permitted to do so refused to do so?

42    “Judge Jeanine” returned to this theme in the days before 6 January 2021 when she is recorded as having said, on her program on 2 January 2021:

The left’s hypocrisy continues to know no bounds. January 6, when the electoral college vote will be formally counted, is just a few days away. Yet how much do you even know about January 6 and the congressional mechanism in place? The mainstream media doesn’t talk about it. They prefer that the Joe Biden presidency be considered a done deal – ‘move on, you truth-deniers!’ We’re being told that it is futile, disruptive, an exercise in lunacy, to even question that Joe Biden is the legitimately elected president of the United States.

43    On 4 January 2021, two days before the planned rally and march to the Capitol, which, as is now well known, turned violent, someone named Sean Hannity, the host of the program “Hannity” on Fox News, is recorded as having said:

… Plus we’ll preview the march for Trump rally that is set to take place this Wednesday. Thousands and thousands of Americans planning to hit the streets in our nation’s capital demand election accountability. Now this comes as Senator Ted Cruz is leading what is a growing effort to officially challenge the electoral college results on the very same day. That is Ted Cruz, Senator Josh Hawley, at least 10 other senators joining now over 140 House lawmakers demanding what would be a 10-day emergency election audit from states with serious voting irregularities. This is an important, this a critical, this is a necessary step in an election that is clearly wrought with serious issues.

44    Mr Murdoch’s solicitor gave some evidence about Crikey’s particulars concerning paragraph 8 of the defence. He suggested that his review of some of the publications referred to in the particulars did not substantiate the allegation in paragraph 8 and that the particulars were incomplete and misleading in certain respects. He intimated that there was likely to be a substantial contest at trial in relation to the allegation in paragraph 8 if it remained in the pleading. Based on that evidence, Mr Murdoch contended that much time would be spent at the trial viewing many hours of footage from Fox News reports and commentary concerning the result of the 2020 presidential election. He submitted that it followed that if paragraph 8 was not struck out, it was likely to cause embarrassment or delay in the proceeding.

45    Mr Murdoch also relied on what he maintained was the “conventional” way that defences which included a public interest element were pleaded. In his submission, the conventional way to plead that a defamatory publication concerned an issue of public interest was to simply identify the issues or topics that were addressed in the publication. The question whether those topics were matters of public interest was, so it was submitted, usually uncontroversial. If there was any controversy, however, that controversy was to be determined by the Court on the basis of assumed knowledge or judicial notice of the surrounding facts and circumstances. In Mr Murdoch’s submission, it was impermissible to adduce evidence as to whether the topics were of public interest, though it was conceded that it may be necessary to adduce evidence if, for example, there was an issue as to whether a person who was referred to in the publication was a public figure.

46    It should perhaps be emphasised at this point that, in his submissions concerning Crikey’s public interest defence, Mr Murdoch appeared to go so far as to effectively concede that the Crikey article in question concerned an issue or issues of public interest. When pressed about whether the topics covered by the article were issues of public interest, Mr Murdoch’s counsel said: “[o]f course … [i]t’s about an election … [i]t’s about evidence before a parliament – committee … I mean it’s obvious … it’s too embarrassing for words to even suggest you would need particulars”. That apparent concession, however, appeared to be entirely at odds with paragraph 5.2 of Mr Murdoch’s reply, which states, in unqualified terms, that Mr Murdoch denies that the Crikey article concerned an issue of public interest.

Mr Murdoch’s objection to Crikey’s Lange defence

47    Mr Murdoch’s objection to the pleading of Crikey’s Lange defence narrowed significantly as a result of Crikey’s proposed amendment to paragraph 43 of the defence. The proposed amendment addressed what was, at least initially, Mr Murdoch’s main complaint concerning the pleading, being that only paragraphs 17 to 22 could be relevant to the reasonableness of Crikey’s conduct in publishing the article. Paragraph 43.2 makes it clear that Crikey relies only on paragraphs 17 to 22 in relation to the reasonableness of its conduct. Paragraph 18.9 of the defence does, however, plead that Mr Keane was aware of the facts, matters and circumstances set out in paragraphs 1 to 16. To that extent, at least, paragraphs 1 to 16 remain relevant to Crikey’s pleaded Lange defence.

48    Mr Murdoch’s remaining complaint concerned paragraph 43.1 of the defence.

49    In Mr Murdoch’s submission, the relevance of paragraphs 1 to 16 of the defence to the pleaded claim that the “matter related to governmental or political matters” was entirely unclear. To give but one example, Mr Murdoch submitted it was entirely unclear how the allegation in paragraph 8 of the defence, which related to what hosts and guests of Fox News had said about the result of the 2020 presidential election, could possibly have any relevance to Australian government or political matters. As for paragraphs 17 to 22, Mr Murdoch submitted that those paragraphs related essentially to Mr Keane and, to a lesser extent, Mr Fray, and their beliefs and intentions. Those matters were, it was submitted, entirely irrelevant to whether the Crikey article related to government or political matters.

Mr Murdoch’s objection to paragraph 37 of Crikey’s defence

50    Mr Murdoch contended that paragraph 37 of the defence, which concerns mitigation of damages, is embarrassing or fails to disclose a reasonable defence or other case appropriate to the nature of the pleading. That was said to be because the defence does not plead any misconduct by Mr Murdoch that would be capable of mitigating damages.

51    In Mr Murdoch’s submission, the facts, matters and circumstances alleged in support of the mitigation plea were in fact incapable of mitigating the damage to Mr Murdoch’s reputation “within the relevant sector of his reputation”. Perhaps more fundamentally, he contended that paragraph 37 did not identify any relevant sector of Mr Murdoch’s reputation, or plead any “disreputable condition” capable of affecting his reputation in any relevant sector. As for the remaining particulars, Mr Murdoch submitted that the plea in paragraph 37.4 – that the “circumstances in which it is proved the [article was] published” were somehow relevant to mitigation – was, in the absence of any further particulars, entirely meaningless.

STRIKING OUT PLEADINGS – APPLICABLE PRINCIPLES

52    The principles to be applied in considering applications to strike out pleadings, or parts of pleadings, are well established. I have, regrettably, frequently been required to apply those principles, including in defamation cases. I summarised the applicable principles in Faruqi v Latham [2018] FCA 1328 at [88]-[98] and Chandrasekeran v Commonwealth of Australia (No 3) [2020] FCA 1629 at [99]-[100]. The same principles apply when considering whether leave to amend should be refused on the basis that the amended pleading would be liable to be struck out: see Edwards v Nine Network Australia Pty Limited [2022] FCA 509 at [29]-[31]. It is unnecessary to provide a further summary of the applicable principles. It suffices to note that I will apply the principles referred to in those three cases in determining the two interlocutory applications in question in this matter.

Should PARAGRAPHS 1-22 AND CRIKEY’S PUBLIC INTEREST DEFENCE BE STRUCK OUT?

53    The manner in which Crikey has pleaded its defence under s 29A of the Defamation Act is far from ideal. The defence is not entirely pellucid and suffers from a degree of ambiguity. Its clarity could no doubt be improved. I am nevertheless not persuaded that the deficiencies in the pleading are such that paragraphs 1 to 16 and 42 could be said to be evasive or ambiguous, or likely to cause prejudice, embarrassment or delay. Nor am I persuaded that those paragraphs, considered together, fail to disclose a reasonable defence.

54    To explain my reasoning in that regard, it is necessary to say something briefly about the nature and scope of the defence in s 29A of the Defamation Act. I should emphasise, however, that given the need to decide this interlocutory dispute without delay, I do not propose to discuss the proper construction of s 29A in painstaking detail. Nor would that be desirable given the interlocutory nature of this decision. As discussed in more detail later, a definitive consideration of the nature and scope of the defence in s 29A is best left for the final hearing when the factual issues have crystallised.

The nature and scope of the defence in s 29A of the Defamation Act

55    Section 29A of the Defamation Act has not been the subject of any detailed consideration in any Australian superior court to date. While it was the subject of some general observations in Barilaro v Google LLC [2022] FCA 650 at [382]-[390], the defence was not directly engaged in that case. In any event, the observations about the defence in Barilaro did not directly address the issues currently under consideration.

56    Section 29A was inserted in the Defamation Act by the Defamation Amendment Act 2020 (NSW), sch 1 cl 27. It provides as follows:

29A    Defence of publication of matter concerning issue of public interest

(1)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter concerns an issue of public interest, and

(b)    the defendant reasonably believed that the publication of the matter was in the public interest.

(2)    In determining whether the defence is established, a court must take into account all of the circumstances of the case.

(3)    Without limiting subsection (2), the court may take into account the following factors to the extent the court considers them applicable in the circumstances—

(a)    the seriousness of any defamatory imputation carried by the matter published,

(b)    the extent to which the matter published distinguishes between suspicions, allegations and proven facts,

(c)    the extent to which the matter published relates to the performance of the public functions or activities of the person,

(d)    whether it was in the public interest in the circumstances for the matter to be published expeditiously,

(e)    the sources of the information in the matter published, including the integrity of the sources,

(f)    if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential (including, for example, to comply with an applicable professional code or standard),

(g)    whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person,

(h)    any other steps taken to verify the information in the matter published,

(i)    the importance of freedom of expression in the discussion of issues of public interest.

(4)    Subsection (3) does not—

(a)    require each factor referred to in the subsection to be taken into account, or

(b)    limit the matters that the court may take into account.

(5)    Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in defamation proceedings tried by jury is to determine whether a defence under this section is established.

57    It is apparent that s 29A of the Defamation Act was intended to provide a “comparable defence” to s 4 of the Defamation Act 2013 (UK) (UK Act): see Explanatory Note, Defamation Amendment Bill 2020 (NSW) at 9.

58    Section 29A uses similar, though not identical, language to s 4 of the UK Act. Section 4 has been considered in decisions by both the High Court of Justice and the Supreme Court of the United Kingdom: see in particular Economou v de Freitas [2018] EWCA Civ 2591; Doyle v Smith [2018] EWHC 2935 (QB); Serafin v Malkiewicz [2020] 1 WLR 2455; [2020] UKSC 23; Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB); and Banks v Cadwalladr [2022] EWHC 1417 (QB). Those decisions provide some guidance in relation to the proper construction of s 29A of the Defamation Act, though, given the different wording of the provision in the UK Act, they should be approached with some degree of caution.

59    I do not intend to discuss the United Kingdom cases in any great detail. Based on my consideration of those cases, and taking into account the differences between s 29A of the Defamation Act and s 4 of the UK Act, I would make the following brief observations about the nature and scope of the defence in s 29A of the Defamation Act.

60    Subsection 4(6) of the UK Act abolished the defence known in the United Kingdom as the “Reynolds defence”, that being the defence recognised or espoused in Reynolds v Times Newspapers Ltd [2001] 2 AC 127. The statutory defence of qualified privilege in s 30 of the Defamation Act largely mirrored the Reynolds defence. In Serafin, Lord Wilson (with whom Lord Reed, Lord Briggs, Lady Arden and Lord Kitchin agreed) noted that, whilst the Court of Appeal in Economou had stated that the “rationale” for the “tests” in the Reynolds defence and the s 4 defence were “not materially different”, it would be “wrong to consider that the elements of the statutory defence can be equiparated with those of the Reynolds defence”: Reynolds at [72]. Moreover, his Lordship observed (at [73]) that the “concept of qualified privilege is laden with baggage which, on any view, does not burden the statutory defence”.

61    The observations of Lord Wilson in Serafin cast considerable doubt on Mr Murdoch’s rather sweeping submission, based on the common law and statutory history of the qualified privilege and public interest defences, that the tests in ss 29A and 30 of the Defamation Act are effectively the same. Steyn J put the matter even more bluntly in Banks (at [102]) where her Honour said that “[t]he statutory defence [in s 4 of the UK Act] is not the same as the now abolished Reynolds defence”.

62    I would, in any event, have considerable difficulty accepting Mr Murdoch’s submission concerning the operation of the two defences given the different language used in ss 29A and 30 of the Defamation Act and the fact that, unlike the position in the United Kingdom, when s 29A was inserted into the Defamation Act, the defence of qualified privilege was maintained, though slightly modified. Why retain both defences if they are effectively the same? Moreover, even though the defences in ss 29A and 30 may share a common rationale and employ some of the same expressions, the relevant tests in the two sections are appreciably different. I also respectfully share Lord Wilson’s view that the “baggage” with which the defence of qualified privilege has become laden should not readily be inflicted on the defence in s 29A of the Defamation Act.

63    It follows that Mr Murdoch’s reliance on authorities concerning the construction of the defence in s 30 of the Defamation Act was somewhat misplaced or misconceived.

64    The defence in s 29A of the Defamation Act effectively involves three elements.

65    The first element is that the “matter concerns an issue of public interest”. There could be little or no doubt that this is “an objective question for the Court not a matter of the subjective judgment of a journalist or editor”: Lachaux at [130].

66    The second element is that the defendant publisher believed that the publication of the matter was in the public interest. This element concerns the defendant’s actual state of mind. The defendant must prove that he, she or it in fact believed that publication of the matter was in the public interest: see Lachaux at [131]. The focus is likely to be on “things the defendant said or knew or did, or failed to do, up to the time of publication”; and, importantly, the “truth or falsity of the allegation complained of” is not a relevant consideration: Economou v de Freitas [2016] EWHC 1853 (QB) at [139] (at first instance); Doyle at [73]. The reference to the “allegation complained of” in that passage from the first instance decision in Economou would appear to be a reference to the defamatory sting found to have been conveyed by the publication in question.

67    The third element is that the defendant’s belief that the publication of the matter was in the public interest was reasonable. This element involves an assessment of “all the circumstances of the case”: see s 29A(2) of the Defamation Act; Economou at [110] (Sharp LJ); Lachaux at [133]; Serafin at [69]. There is no doubt a degree of objectivity involved in this element. The question, essentially, is whether a reasonable person standing in the defendant’s “shoes” – that is, in particular, possessing the information that the defendant possessed at the time – would have held that belief. In this case, the question will essentially be whether Crikey, given what it knew (or did not know) and given what it did (or did not do) to guard, as best it could, against the publication of untrue defamatory imputations, would reasonably have considered the publication of the article to be in the public interest.

68    While all of the circumstances of the case must be considered, the focus of much of the inquiry in respect of the third element is generally likely to be on the nature and content of the publication, the seriousness of the defamatory imputations found to have been conveyed by the publication, the information possessed by the defendant and its sources, and the steps taken by the defendant to check or verify that information. The list of potentially relevant considerations referred to in s 29A(3) of the Defamation Act includes some considerations that are also relevant to the defence in s 30. The position is broadly the same in the United Kingdom, where many of the considerations that were potentially relevant to the Reynolds defence are considered to be potentially relevant to the defence under s 4 of the UK Act.

69    There is an issue, or potential issue, as to the meaning of the expression “defamatory matter” and the word “matter” when used in s 29A of the Defamation Act. Is the relevant “defamatory matter” or “matter” the publication which conveyed the defamatory imputation – the so-called “matter complained of”? Or is it the defamatory imputation, or the defamatory sting of the imputation, found to have been conveyed by the publication? Crikey contended that it was the former – that is, that the relevant “defamatory matter” or “matter” in this case is the Crikey article. Mr Murdoch contended that it was the latter – that is, that the relevant “defamatory matter” or “matter” for the purposes of s 29A is the sting of the imputation or imputations found to have been conveyed by the Crikey article.

70    While it is both unnecessary and undesirable for me to reach a definitive conclusion in respect of this issue at this interlocutory stage, I would strongly incline to the view that, despite what may have been said in authorities concerning other defences in the Defamation Act, including the defences in ss 30 and 31, the reference to “defamatory matter” and “matter” in s 29A is a reference to the article, report or program which conveyed the defamatory imputation or imputations. It is not a reference to the alleged defamatory imputation or imputations, or the defamatory sting, found to have been conveyed by the relevant article, report or program.

71    That construction of s 29A is supported by the broad definition of “matter” in s 4 of the Defamation Act, which relevantly includes “article”, “report” and “program”. It is also supported by the terms of s 8 of the Defamation Act, which provides that a “person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter”. It is clear that the “defamatory matter” in s 8 is the publication which conveyed the alleged imputation or imputations. There is a single cause of action in relation to the “matter” – the publication – even if the publication is alleged to have conveyed more than one defamatory imputation. There is, therefore, a clear distinction between the “matter” and the defamatory imputation or imputations that may have been carried by it. That clear distinction is also seen in the terms of s 29A. It is most apparent in s 29A(3)(a), which provides that, in determining whether the defence is established, the Court may take into account “the seriousness of any defamatory imputation carried by the matter published”.

72    The United Kingdom authorities may provide some guidance in respect of this issue even though, as noted earlier, the language used in s 4 of the UK Act is different to the language used in s 29A of the Defamation Act. The first element in the defence in s 4 of the UK Act is whether the “statement complained of was, or formed part of, a statement on a matter of public interest” (emphasis added). The reference to “the statement complained of” means the “words complained of”, not “the (single) defamatory imputation they convey”: Economou at [92]-[93]; Lachaux at [130]. The test in the UK Act, therefore, would appear to be whether either the publication as a whole, or the particular words in the publication that gave rise to the defamatory imputation, comprised a “statement on a matter of public interest”. The important point to note is that, under the UK Act, a publication (the broader statement) may still be considered to be a statement of public interest even if it contained some words (the words complained of) which were found to be defamatory. That would tend to support the proposition that s 29A of the Defamation Act, which was in large part based on s 4(1) of the UK Act, should be construed such that a publication (the “matter”) may concern an issue of public interest even if it contained words found by the Court to be defamatory in some respect.

73    It is important to emphasise, in this context, that while the relevant “matter”, for the purposes of s 29A of the Defamation Act, would appear to be the publication – the article, report or program in question – it is clear that the imputations, or their defamatory sting, found to have been conveyed by the publication cannot be ignored when it comes to determining whether the publication “concerns an issue of public interest”. Nor can it be ignored when it comes to considering whether the defendant’s belief that publication of the matter was in the public interest was reasonable. The nature, character and seriousness of the sting of the imputation or imputations found to have been conveyed by the publication is likely to be relevant to those issues. So much is readily apparent from the terms of s 29A(3)(a) of the Defamation Act. In some cases that consideration might well be decisive.

74    It may also be accepted that it will generally be relevant to consider whether the defamatory imputation can be seen to genuinely relate to or arise from the issues of public interest with which the publication in question is concerned. As Lord Hoffmann observed in Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359 (a case concerning the Reynolds defence) at [51], in a passage cited with apparent approval by Nicklin J in Lachaux at [130]:

If the article as a whole concerned a matter of public interest, the next question is whether the inclusion of the defamatory statement was justifiable. The fact that the material was of public interest does not allow the newspaper to drag in damaging allegations which serve no public purpose. They must be part of the story. And the more serious the allegation, the more important it is that it should make a real contribution to the public interest element in the article.

75    Similar considerations are likely to arise in the context of the public interest defence in s 29A, particularly in respect of the first and third elements of that defence. A publication is less likely to be found to concern an issue of public interest, and a publisher’s belief that the publication of the matter was in the public interest is less likely to be considered reasonable, if the publication “drag[s] in damaging allegations” against a person in circumstances where those allegations do not serve the broader public interest.

76    How, then, does the Court go about objectively determining whether the “matter” in question “concerns an issue of public interest” for the purposes of s 29A(1)(a) of the Defamation Act?

77    The first step would appear to be the identification of the issues or topics that were addressed or discussed in the relevant article, report or program. That is likely to be a relatively straightforward exercise. It may also be uncontentious in many cases, though of course that will depend on how the issues or topics are framed in the pleading.

78    The next step would appear to be to determine whether any of the issues or topics with which the article was concerned were issues of public interest. The words “public interest” are plainly of wide import and generally should not be confined “within narrow limits”: London Artists Ltd v Littler [1969] 2 QB 375 at 391 (Lord Denning MR); see also, albeit in a different context, McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at [93] (Callinan and Heydon JJ).

79    As Mr Murdoch submitted, in many cases the question whether the matter concerned an issue of public interest is likely to be uncontentious and the answer obvious. As appeared to be conceded in the course of Mr Murdoch’s submissions, this may well be such a case, though that will obviously be a matter for the final hearing.

80    But what if the question of whether the issues or topics addressed in the article are issues of public interest is controversial and contested? How and on what basis is that question to be determined by the Court? Much will depend on the nature of the issues dealt with in the relevant publication. Mr Murdoch appeared to contend that in most, if not all, cases, the question will be determined on the basis of the Court’s assumed knowledge or judicial notice of the surrounding facts and circumstances. For example in this case, so it was submitted, the Crikey article clearly concerned Donald Trump, the Murdochs and the evidence given at the Congressional hearing into the events of 6 January 2021. Those issues or topics were said to almost self-evidently be issues of public interest.

81    But what of the case where the issues with which the publication was concerned are not issues that are obviously or self-evidently of public interest? Or, perhaps more importantly, what of the case where the surrounding facts and circumstances which were said to demonstrate that the issues were of public interest could not be said to be “not reasonably open to question” or matters of “common knowledge”?: see s 144 of the Evidence Act 1995 (Cth). It is at least arguable that in such a case, a defendant who wishes to rely on the defence in s 29A of the Defamation Act should be permitted to adduce evidence and seek to prove the surrounding facts and circumstances which were said to establish that the issues with which the publication was concerned were of public interest. If that is the case, particulars of those facts and circumstances plainly should be provided in the pleading.

82    Mr Murdoch gave an example of such a case in his submissions. That example was a case where it was alleged that the publication concerned an issue of public interest on the basis that it concerned a public figure, but there was a dispute about whether the person in question was in fact a public figure. In such a case, it would appear to be open to the defendant to adduce evidence in an endeavour to prove that the person had, by her or his activities, assumed a public persona such that her or his activities, even her or his private activities, might be regarded as being the subject of public interest: see, for example, John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364. Such a factual issue could not be resolved by assumed knowledge or judicial notice.

83    The example given by Mr Murdoch, perhaps unwittingly, tends to support the proposition that evidence of surrounding facts and circumstances may be relevant and admissible in respect of the question whether an allegedly defamatory article concerned issues of public interest. If evidence which tended to demonstrate that the person in question was a public figure was relevant and admissible, why would evidence of other facts relevant to the question of public interest, if disputed, not equally be relevant and admissible?

84    It might be added that, while the decision in Hitchcock must be approached with some caution because it involved defences in the former Defamation Act 1974 (NSW) which, while they included the element of public interest, differed in material respects from s 29A of the Defamation Act, it is nevertheless noteworthy that the New South Wales Court of Appeal in that case overturned the decision of the primary judge to strike out those defences. Ipp JA observed (at [9]) that the legal principles relating to the element of public interest could “only be determined once the factual issues are crystallised” and that it was “premature and undesirable to express any opinions about those legal principles” in the context of a strike out application. McColl JA (with whom Tobias JA relevantly agreed) also reasoned (at [178]) that, in essence, the extent to which the plaintiff had made her private life a matter of public interest was a matter to be determined at trial, at least where there was “arguably a factual basis” for the defendant’s argument.

85    The decision of Warby J in Doyle would appear to be another example of a case where the question whether the publication in question concerned (or was “on”) an issue of public interest was not obvious or self-evident, but rather depended on evidence concerning the surrounding facts and circumstances. It is unnecessary to consider the facts and circumstances of that case in any great detail. It suffices to note that Warby J’s conclusion that the subject matter of one of the relevant articles was of public interest appears to have turned not only on the content of the article in question, but also on findings concerning the surrounding facts and circumstances. Those factual findings appeared to be based on the evidence adduced at trial. They did not appear to be based on assumed knowledge or judicial notice concerning the surrounding facts and circumstances.

86    It follows that, in my view, it is at least arguable that, in a case where there is a dispute about the existence of facts that would, if proved, tend to demonstrate that the defamatory matter in question concerned an issue of public interest, it is open to the plaintiff to plead and seek to prove those facts at trial. I am unable to accept the argument advanced on Mr Murdoch’s behalf that the issue of public interest is to be determined only on the basis of the content of the article itself and facts in respect of which judicial notice may be taken. While the question whether the issues addressed in a publication were issues of public interest may be relatively straightforward and uncontentious in some cases, where the question is controversial and depends on contested or contestable facts and circumstances that existed at the time of publication, it is open to a plaintiff to plead and seek to prove those facts at trial.

Is it reasonably arguable that the facts pleaded in paragraphs 1 to 16 of the defence are relevant to the issue of public interest?

87    As has already been noted, the main thrust of Mr Murdoch’s contention that paragraphs 1 to 16 of Crikey’s defence should be struck out was that the objective truth of the facts referred to in those paragraphs cannot be relevant to any of the elements of Crikey’s defence under s 29A of the Defamation Act. That was said to be because the Court’s assessment of whether the defamatory matter in question concerned an issue or issues of public interest must be based solely on the terms of the defamatory matter, facts in respect of which judicial notice could be taken, and “the application of ordinary standards”. Facts and circumstances surrounding the publication of the defamatory matter were said to be irrelevant to any assessment of whether the matter concerned issues of public interest. Surrounding facts and circumstances were also said to be irrelevant to an assessment of whether the publisher’s belief that the publication of the matter was in the public interest was reasonable. The objective element of that assessment, so it was submitted, can only be assessed on the facts, matters and circumstances within the knowledge of the publisher and the publisher’s conduct. Mr Murdoch relied, in support of those submissions, on the reasoning of various decisions in respect of the defence under s 30 of the Defamation Act.

88    For the reasons I have essentially already given, I do not agree that the facts pleaded in paragraphs 1 to 16 are necessarily irrelevant to a determination of whether the Crikey article concerned an issue of public interest. In my view, it is at the very least arguable that the facts pleaded in paragraphs 1 to 16 may, if proved (or admitted), rationally affect the assessment of whether the Crikey article concerned an issue of public interest for the purposes of s 29A(1)(a) of the Defamation Act. That is a fact in issue in the pleading, it being denied in Mr Murdoch’s reply.

89    I do not accept, at least at this interlocutory stage, Mr Murdoch’s submission that it is clear beyond argument that the relevant “matter” for the purposes of s 29A(1)(a) is the defamatory sting of the imputation or imputations found to have been conveyed. I incline to the view that the relevant “matter” for the purposes of s 29A(1) is the publication which is alleged to have conveyed the defamatory imputation or imputations. Nor do I accept Mr Murdoch’s submission that the question whether the relevant “matter” concerned an issue of public interest is to be determined solely on the basis of the terms or nature of the defamatory sting found to have been conveyed, along with facts in respect of which judicial notice could be taken. In my view, where there is a dispute as to whether the publication in question concerned an issue of public interest, evidence of facts or circumstances that existed at the time of the publication which may bear on whether the publication concerned an issue of public interest may be admissible.

90    Of course, the assessment of whether a publication concerned an issue of public interest must take into account the fact that the publication contained words or statements which were defamatory of the plaintiff and not substantially true. There is no occasion to consider the public interest defence if it has not been found that the publication conveyed untrue defamatory imputations. It does not follow, however, that the assessment of whether the publication concerned an issue of public interest must focus entirely on the sting of the defamatory imputations found to have been conveyed by the publication. The public interest is to be assessed in the context of the broader publication, though taking the defamatory sting into account.

91    I also consider that Mr Murdoch’s reliance on the reasoning in authorities concerning the defence of qualified privilege in s 30 of the Defamation Act was largely misplaced. It may be accepted that there is authority for the proposition that the objective truth of what was published is irrelevant to the defence of qualified privilege and, in particular, irrelevant to issues raised by that defence, including the publisher’s belief in the truth of what was published and the reasonableness of the publisher’s conduct in the circumstances: see Rush v Nationwide News Pty Ltd (2018) 359 ALR 473; [2018] FCA 357 at [120] to [149] (and the authorities there discussed). That, however, is a different issue to the issue under consideration in this matter. Paragraphs 1 to 16 are not directed to establishing the objective truth of what was said in the Crikey article. Rather, those paragraphs are directed at establishing the context in which the article was published so as to demonstrate that the issues addressed in the article were issues of public interest. The potential relevance of the context to the issue of public interest was acknowledged in Rush at [142].

92    It follows that, in my view, it is at least arguable that the facts pleaded in paragraphs 1 to 16 are potentially relevant to Crikey’s public interest defence. I reject Mr Murdoch’s contention that those paragraphs should be struck out because they are demonstrably irrelevant.

93    I should also note in this context that it is significantly less clear whether the facts pleaded in paragraphs 1 to 16 are, or are likely to be, relevant to the third element of the public interest defence – whether Crikey’s subjective belief that the publication of the article was in the public interest, if proved, was reasonable. Crikey contended that the facts in paragraphs 1 to 16 might be relevant to that element of the defence. Mr Murdoch argued that they were demonstrably irrelevant to that element. I do not have to finally determine this issue at this stage given my findings in respect of the potential relevance of paragraphs 1 to 16 to the first element of the defence. I would simply observe that the third element of the defence is likely to hinge, among other things, on what Crikey (in particular, Mr Keane as the author) knew or believed in relation to the surrounding or background facts and circumstances at the time of publication, not on the actual existence of, or proof of the truth or accuracy of, those facts or circumstances. That said, the question whether any of those facts can properly be taken into account in determining the reasonableness of Crikey’s beliefs in respect of the publication of the article is a matter best left for determination at trial. I am not persuaded that the pleaded facts are demonstrably irrelevant to that issue.

94    Finally, I should perhaps reiterate that many of Mr Murdoch’s contentions concerning paragraphs 1 to 16 must be considered in light of the fact that it is clear from the terms of his reply to Crikey’s defence that, contrary to many of the submissions that were advanced on his behalf, he denies that the Crikey article concerned any issue of public interest (see paragraph 42.1 of the defence and paragraph 5.2 of the reply) and does not admit any of the facts pleaded in paragraphs 1 to 16, even those that were effectively said to be facts in respect of which judicial notice could be taken. Many of the problems that Mr Murdoch suggested arose from the pleading of the facts in paragraphs 1 to 16 would effectively disappear if the position taken by Mr Murdoch in his reply aligned more closely to the oral submissions that were advanced on his behalf. The main issue that would arise at trial in respect of the public interest defence would then be the reasonableness of Crikey’s belief that the publication of the article was, in all the circumstances, in the public interest.

Are paragraphs 1 to 16 otherwise evasive or ambiguous, or likely to cause prejudice, embarrassment or delay?

95    As noted earlier, Mr Murdoch’s argument that paragraphs 1 to 16 were evasive or ambiguous, or likely to cause prejudice, embarrassment or delay, focussed primarily on paragraphs 8 and 9.

96    While it may perhaps be accepted that the drafting of paragraphs 8 and 9 is not ideal, I am not persuaded that they are sufficiently evasive or ambiguous, or likely to cause prejudice, embarrassment or delay to warrant being struck out. There may well be issues as to the clarity and particularity of the references to “Fox News”, the “Murdoch family” and their alleged ownership of Fox Corporation. I doubt that those issues are likely to cause any prejudice to Mr Murdoch which could not be remedied by the provision of further and better particulars or outlines of evidence.

97    Crikey may also have some difficulties proving some of the things asserted in paragraphs 8 and 9, including, for example, that the allegations of voter fraud made by Donald Trump were made “without reasonable basis”. A similar allegation is made in paragraph 5 of the defence. That, however, is somewhat beside the point. If Crikey is unable to prove those matters, the asserted problem effectively disappears. Perhaps more significantly, it seems to me that the relevant question is not so much whether Mr Trump’s allegations had no reasonable basis, but rather whether the basis of Mr Trump’s allegations was the subject of public debate, discussion or criticism at the time. The same can be said in respect of paragraph 5 and a number of other aspects of the facts pleaded in paragraphs 1 to 16. Nevertheless, pleading is not a counsel of perfection. While the pleading of the facts in paragraphs 1 to 16 could no doubt be improved, that in itself does not provide a basis for striking out those paragraphs.

98    As for Mr Murdoch’s claim that proof of the facts alleged in paragraph 8 will cause embarrassment or delay because the Court may need to view many programs broadcast on multiple Fox News channels over a lengthy period of time, the mere fact that time will be taken at trial resolving a relevant but disputed fact does not of itself provide a basis for striking out the pleading of that fact. It also seems to me that the evidence adduced by Mr Murdoch in respect of the facts pleaded in paragraph 8 somewhat missed the point. Paragraph 8 does not allege that every single Fox News host or guest promoted the allegations or claims referred to in paragraphs 8.1 and 8.2. Nor is it alleged that no Fox News host or guest ever cast any doubt on those allegations or claims.

99    I am in all the circumstances unpersuaded that paragraphs 8 and 9, or indeed any of paragraphs 1 to 16, should be struck out on the basis that they are evasive or ambiguous, or likely to cause prejudice, embarrassment or delay in the proceeding.

100    The question whether paragraphs 1 to 16 disclose a reasonable defence is discussed later in the context of paragraph 42.

Should paragraphs 1 to 16 be confined?

101    Paragraph 1 of Mr Murdoch’s interlocutory application seeks an order that paragraphs 1 to 16 of the defence be confined to matters within Crikey’s belief or state of mind. For the reasons already given, there is no proper basis for the making of that order. It is at least arguable that the facts pleaded in paragraphs 1 to 16 of the defence are relevant to the question of whether the Crikey article concerned an issue of public interest, irrespective of Crikey’s knowledge or belief in respect of those facts.

Paragraphs 17 to 22

102    Most of Mr Murdoch’s arguments concerning Crikey’s defence were directed at paragraphs 1 to 16. The precise basis of Mr Murdoch’s objection to paragraphs 17 to 22 remained somewhat elusive or unclear. The most that can be said is that the relevance of some of what is alleged in paragraphs 17 to 22 was questioned. There also appeared to be a suggestion that some of what is pleaded in paragraphs 17 to 22 is repetitive of what is pleaded in paragraph 42.1 and is therefore otiose.

103    As outlined earlier, the facts pleaded in paragraphs 17 to 22 essentially concern Mr Keane’s qualifications, experience and, perhaps more significantly, his knowledge or belief about certain matters at the time of the publication of the article. It seems to me that the facts pleaded in paragraphs 17 to 22 are at least arguably relevant to Crikey’s public interest defence in that they may bear on whether Mr Keane and Mr Fray reasonably believed that the publication of the article in question was in the public interest. I am not persuaded that these paragraphs are sufficiently evasive or ambiguous, or likely to cause prejudice, embarrassment or delay in the proceeding.

104    The question whether paragraphs 17 to 22 disclose a reasonable defence is discussed next in the context of paragraph 42.

Paragraph 42 – a reasonable defence?

105    Mr Murdoch’s contention that paragraph 42 should be struck out hinged to a large extent on his argument that paragraphs 1 to 16 were irrelevant. The pleading of the public interest defence in paragraph 42 was said to be deficient or defective because the pleading relied, among other things, on paragraphs 1 to 16. That argument must fail because, for the reasons already given, paragraphs 1 to 16 are not irrelevant to the public interest defence as pleaded.

106    I am not otherwise persuaded that paragraph 42 of the defence should be struck out on the basis that it is evasive or ambiguous, or likely to cause prejudice, embarrassment or delay in the proceeding. Nor am I satisfied that paragraph 42 fails to disclose a reasonable defence.

107    There is no doubt that Crikey’s pleading of its public interest defence is not ideal and could be improved. It would plainly be preferable for the defence to be pleaded in such a way that the facts, matters and circumstances said to be relevant to each of the three elements of the defence in s 29A(1) are separately identified. The facts, matters and circumstances that may be relevant to the question whether the article concerned an issue of public interest are no doubt different to the facts, matters and circumstances relevant to whether Crikey reasonably believed that the publication of the article was in the public interest.

108    Paragraph 42 in effect pleads that the “matters set out at [1]-[22]” are relevant to each of the elements of the defence. It is difficult to see how that could be so. It is, for example, difficult to see how many of the facts pleaded in paragraphs 1 to 16 could be said to be relevant to the question of whether Crikey believed that the publication of the article was in the public interest. Likewise, it is difficult to see how some of the facts pleaded in paragraphs 17 to 22 could be relevant to the question whether the article concerned an issue of public interest. To that extent, at least, paragraph 42 is poorly pleaded and somewhat ambiguous. The clarity of paragraph 42.1 of the defence, which addresses the topics or issues with which the article was allegedly concerned, could also no doubt be improved.

109    I am not, however, presently persuaded that that deficiency in paragraph 42 is such as to warrant the striking out of the defence. Despite the ambiguity, I find it difficult to accept that Mr Murdoch is genuinely unable to understand the defence as pleaded. Moreover, in my view, any ambiguity or confusion arising from the way the defence has been pleaded could readily be remedied by the provision of particulars which clearly identify which of paragraphs 1 to 22 are relied on in respect of which elements of the pleaded defence under s 29A of the Defamation Act. I appreciate that the evidence before me discloses that Mr Murdoch’s solicitor has in the past written to Crikey’s solicitor and sought clarification of the defence as pleaded. The replies to that correspondence have, for the most part, been unhelpful. I would, if necessary, order Crikey’s solicitor to provide appropriate clarification of the defence if that clarification is not forthcoming following the publication of this judgment.

Conclusion in respect of paragraphs 1 to 22 and 42 of the defence

110    I am not, in all the circumstances, persuaded that it is necessary or appropriate to strike out any of paragraphs 1 to 22 or 42 of Crikey’s defence. In particular, I am not satisfied that the facts pleaded in paragraphs 1 to 16 of the defence are demonstrably irrelevant to Crikey’s public interest defence, as contended by Mr Murdoch. In my view, it is at least reasonably arguable that those paragraphs are relevant to the question whether the Crikey article concerned an issue or issues of public interest under s 29A(1)(a). I am also not persuaded that any of paragraphs 1 to 22 or 42 are sufficiently evasive or ambiguous to warrant being struck out. Nor are any of those paragraphs, considered separately or together, likely to cause prejudice, embarrassment or delay in the proceeding.

111    In my view, while Crikey’s pleading of the public interest defence may not be perfect or ideal, paragraphs 1 to 22 and 42 of the defence, fairly read, disclose a reasonably arguable defence.

112    I should finally add that many of the legal issues that Mr Murdoch raised in respect of the scope and operation of the defence in s 29A of the Defamation Act are issues that should properly be addressed on a final basis once the evidential and factual issues have been crystallised at the trial. I have expressed a view about the operation of s 29A so as to resolve the current interlocutory dispute. A final and decisive decision as to the operation of the defence should await the trial.

SHOULD CRIKEY’S LANGE DEFENCE BE STRUCK OUT?

113    Crikey’s Lange defence in paragraph 43 of the defence is pleaded in terms which, to say the very least, are less than ideal. I am nevertheless not persuaded that the defence should be struck out. In my view, the deficiencies in the pleading can fairly and more efficiently be remedied by the provision of further particulars.

114    I do not propose to discuss the elements or parameters of the Lange defence. Neither of the parties addressed the nature of the defence in their submissions.

115    The essential question raised by Mr Murdoch’s objection to the pleading of the defence is whether the facts pleaded in paragraphs 1 to 22 can arguably be relevant to Crikey’s contention that the article in question concerned government or political matters. The answer to that question is similar to the answer to the question whether the facts pleaded in paragraphs 1 to 22 of the defence can be relevant to the question whether the article concerned issues of public interest. It is, therefore, possible for me to be brief in resolving this objection to the pleaded Lange defence.

116    The first step in determining whether a publication related to government or political matters, for the purpose of the Lange defence, is to determine the topics or issues addressed in the article in question. Crikey’s pleading does this by referring to, or incorporating, what is alleged in that regard in paragraph 42.1 in the context of the public interest defence.

117    In many, if not most, cases, it will be fairly obvious or self-evident that the issues or topics addressed in the publication relate to government or political matters. Where that is not the case, however, it may be relevant to have regard to the surrounding facts and circumstances at the time of publication so as to determine whether the article in fact related to government or political matters. Crikey contended, in effect, that this is such a case, particularly in light of the fact that in paragraph 6 of his reply Mr Murdoch denies that the article concerned government or political matters.

118    I am not persuaded that the facts pleaded in paragraphs 1 to 16 are necessarily irrelevant to the question whether the article concerned government or political matters. As was the case in respect of the similar question which arose in the context of Crikey’s pleading of its public interest defence, it is at least arguable that the facts pleaded in paragraphs 1 to 16, if proved, might rationally affect the assessment of whether the issues or topics addressed in the article concerned government or political matters. The extent to which the evidence adduced to prove the facts, matters and circumstances pleaded in paragraphs 1 to 16 of the defence is in fact capable of demonstrating that the article concerned government or political matters is an issue which is properly addressed at trial.

119    I am also not persuaded that paragraph 43 of the defence fails to disclose a reasonable defence. While the pleading is far from pellucid, it is at least arguable that the article related to government or political matters such as to attract the Lange defence.

120    I should perhaps note, in that context, that in the course of the short submissions made on behalf of Mr Murdoch in respect of the Lange defence, brief mention was made of the fact that the government or political matters identified in paragraph 43 were not Australian government or political matters. It appeared to be suggested that the defence would likely fail for that reason. Crikey’s response was to suggest that the defence could be amended to indicate that the article concerned Australian government or political matters. That is an issue that should be clarified sooner rather than later. The present particulars of the defence certainly do not make it clear how or why it is said that the government or political matters addressed in the article related to Australia.

121    I would also observe, in respect of this potential issue, that it is by no means certain that the Lange defence is strictly limited to the discussion of government or political matters directly relating to Australia. In Lange (at 571), the Court suggested that “discussion of matters concerning … other countries may be protected by the extended defence of qualified privilege, even if those discussions cannot illuminate the choice for electors at federal elections … or cannot throw light on the administration of federal government”. In any event, this is an issue that can be addressed at trial.

Should paragraph 37 be struck out?

122    Crikey’s pleading in respect of mitigation of damages is also far from ideal. The particulars of the matters relied on by Crikey are, for the most part, of little assistance in elucidating or marking out the parameters of its case in respect of mitigation. I do not, however, accept that its deficiencies are such as to warrant striking it out at this stage.

123    Dealing with the particulars in turn, it provides little, if any, assistance to say that “the facts, matters and circumstances proven in support of the defences pleaded” will be relied on in mitigation of damages: paragraph 37.2 of the defence. It is also difficult to see how many, if not most, of the facts, matters and circumstances specifically pleaded in respect of Crikey’s public interest and Lange defences could possibly be said to be relevant to mitigation of damages.

124    That said, this is an issue best addressed at trial when more is known about the particular facts, matters and circumstances that have been proven, and how or why they are relied on in relation to mitigation of damages. It is at least arguable that some of the evidence adduced in support of Crikey’s public interest and Lange defences might rationally diminish the harm to Mr Murdoch’s reputation as a result of such defamatory imputations found by the Court to have been conveyed: cf Pamplin v Express Newspapers Ltd [1988] 1 WLR 116; [1988] 1 All ER 282 at [21]. If that turns out to be the case, it would most likely be appropriate for Crikey to provide Mr Murdoch with further particulars in respect of mitigation at some point in time, either after outlines of evidence have been exchanged, or after the evidence has been adduced at trial. I see little point in striking out paragraph 37.2 of the defence at this point in time. Even if it was struck out, Crikey could in any event seek to rely on evidence adduced at trial in accordance with the principle in Pamplin.

125    As for the pleading in respect of what is said to be Mr Murdoch’s bad reputation (paragraph 37.3 of the defence), it may of course be accepted that evidence of bad character is only relevant if it is directed to that “sector” of the plaintiff’s character that has relevance to the nature of the defamatory matter: Plato Films Ltd v Speidel [1961] AC 1090 at 1140 (Lord Denning); Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 801. It is in my view at least arguable that Mr Murdoch’s reputation as a senior executive of a global media conglomerate is the relevant “sector” of Mr Murdoch’s reputation given the nature of the article and the alleged defamatory imputations. That is the essence of what is pleaded, albeit somewhat awkwardly, in paragraph 37.3 of the defence. The admissibility of any evidence sought to be adduced by Crikey in respect of Mr Murdoch’s reputation in that sector cannot be addressed in the abstract. It is more appropriately addressed at trial, or at least following the exchange of outlines of evidence.

126    Mr Murdoch argued that paragraph 37.3 of the defence should be struck out as it suggested that the evidence upon which Crikey may seek to rely in impugning Mr Murdoch’s reputation would necessarily be inadmissible by reason of the rule in Scott v Sampson (1882) 8 QBD 491. The rule in Scott v Sampson (at 495, 503-505) is, in simple terms, that bad reputation cannot be proved by evidence of “particular acts of misconduct” by the plaintiff, save where there are criminal convictions: Goody v Odhams Press Ltd [1967] 1 QB 333 at 340; Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77 at [178]. The short answer to this submission, once again, is that the admissibility of any evidence that Crikey may seek to adduce in respect of Mr Murdoch’s reputation cannot be addressed in the abstract. The admissibility of such evidence can only be addressed at trial, or at least following the exchange of outlines of evidence. I am unable to accept that any evidence that Crikey may seek to adduce in support of the allegation in paragraph 37.3 of the defence will necessarily be inadmissible by reason of the rule in Scott v Sampson.

127    The remaining particulars of what Crikey says it will rely on in respect of mitigation are bereft of any meaningful detail. It is effectively meaningless for Crikey to say that it will rely on the circumstances in which it is proved that the article was published: paragraph 37.4 of the defence. Nevertheless, once again, the question of whether any facts relating to the circumstances of the publication of the article are relevant to mitigation is properly addressed at trial, rather than in the abstract at an interlocutory stage. It may well be appropriate for Crikey to provide further particulars in respect of this plea after the exchange of outlines of evidence. That is an issue that will be addressed at an appropriate time. While the particulars in paragraph 37.4 are largely meaningless at this point in time, I see little point in striking it out.

128    Finally, the suggestion in paragraph 37.5 of the defence that Crikey may rely on “such further matters as may be identified following discovery and interrogatories” effectively adds nothing to the defence. If as a result of some document obtained on discovery, or some answer given to an interrogatory, Crikey happens to identify a further fact, matter or circumstance upon which it wishes to rely, it will be required to seek leave to amend, or include additional particulars in its defence. The question whether leave should be granted can be addressed at that point. Striking out this paragraph of the pleading would achieve nothing, as Crikey could, in any event, seek leave to amend or include further particulars after those interlocutory processes take place.

129    Mr Murdoch contended, in effect, that if this paragraph in the pleading remained, it would effectively give Crikey licence to abuse the Court’s compulsory processes to fish for material relevant to mitigation. The short answer to that contention is that, if at any point there is any basis for the allegation that Crikey was seeking to use the Court’s compulsory processes to merely fish for a case in respect of mitigation, Mr Murdoch could at that point oppose Crikey’s actions in that regard on the basis that they amounted to an abuse of process. That is an issue that can be addressed should the occasion arise. I would also reject the contention that the inclusion of paragraph 37.5 will somehow enable Crikey to use the Court’s processes to fish for material that may support its case in respect of mitigation.

130    I am not persuaded, in all the circumstances, that it is appropriate to strike out paragraph 37 of Crikey’s defence.

MR MURDOCH’S REPLY

131    It is unnecessary to give any detailed consideration to Mr Murdoch’s reply, at least for present purposes. Its key elements may be summarised as follows.

132    First, it alleges that paragraph 37 of the defence is embarrassing and discloses no reasonable ground of mitigation. That plea goes nowhere unless paragraph 37 is struck out. For the reasons already given, I do not propose to strike out paragraph 37.

133    Second, the reply joins issue with Crikey’s defence under s 29A of the Defamation Act and denies that the article concerned an issue of public interest, denies that Crikey believed that the article was in the public interest and denies that any such belief was reasonable. At paragraph 5.5 of the reply, it is said, in the context of replying to Crikey’s s 29A defence, that Crikey was actuated by malice. The suggestion appears to be that Crikey could not have reasonably believed that publication of the article was in the public interest because it was actuated by malice.

134    Third, paragraphs 6 and 7 of the reply join issue with Crikey’s Lange defence and allege that Crikey acted with malice and for the improper purpose of harming Mr Murdoch and attracting unwarranted attention to the article.

135    Fourth, paragraph 8 of the reply joins issue with Crikey’s defence under s 18 of the Defamation Act and alleges that Crikey did not make an offer to make amends for the purposes of s 15 of the Defamation Act, did not make its purported offer as soon as reasonably practicable, and that the offer was not reasonable.

Crikey’s complaints concerning paragraph 5.5

136    Crikey’s complaint concerning paragraph 5.5 of the reply may be shortly stated. Crikey contended that malice is not a ground of defeasance to a defence under s 29A of the Defamation Act. There is, Crikey pointed out, no equivalent to s 30(4) of the Defamation Act which provides, in respect of the defence of statutory qualified privilege, that “a defence of qualified privilege … is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice”.

137    Mr Murdoch does not dispute that there is no statutory defeasance of s 29A, including by malice, if the elements of the defence are otherwise established. He contended, however, that paragraph 5.5 of the reply is not a plea of defeasance. Rather, it is simply a response to Crikey’s contention that it reasonably believed that the article was in the public interest. His case, in short, is that Crikey did not reasonably entertain any such belief but was instead actuated by malice.

Should paragraph 5.5 be struck out?

138    It is not appropriate to strike out paragraph 5.5 of Mr Murdoch’s reply given his clarification as to how he seeks to deploy the allegation of malice in the context of Crikey’s s 29A defence. It is at least reasonably arguable that if Mr Murdoch proves that Crikey was actuated by malice in publishing the article, it would follow that Crikey’s claim that it reasonably believed that the article was in the public interest would most likely be rejected. Whether Mr Murdoch is able to prove that Crikey acted for that purpose, and whether Crikey’s public interest defence accordingly fails, is of course a matter to be determined at trial having regard to the evidence as a whole.

LEAVE TO FILE AN AMENDED DEFENCE

139    As has already been noted, the issues raised by Mr Murdoch’s interlocutory application were approached and determined by reference to Crikey’s proposed amended defence. Crikey did not formally seek leave to file the proposed amended defence and Mr Murdoch, perhaps understandably, did not address any submissions to the question whether leave to amend should or should not be granted. I accordingly do not propose to grant leave to file the proposed amended defence at this time, though as presently advised I can see no real reason why leave should not be granted.

140    There is another reason why it would be preferable not to grant leave to file the proposed amended defence at this stage. Crikey may well consider, in light of these reasons for judgment, that it is prudent and reasonable to make some further changes to its defence so as to remedy or resolve some of the ambiguities and deficiencies that have been highlighted. Mr Murdoch may be prepared to consent to further amendments to the defence which may assist in some way to resolve some of the issues that have been highlighted in these reasons. I would suggest that counsel for the parties liaise with each other in the near future with a view to reaching agreement concerning the amendment of the defence. If no agreement is reached, I will, of course, have to resolve the question of leave to amend. Obviously the sooner that occurs, the better.

COSTS

141    The parties did not make any detailed submissions in relation to costs. That is understandable as the question of costs no doubt hinged on the outcome of the respective interlocutory applications. My present inclination would be that the appropriate order for costs is that the costs of the interlocutory applications be costs in the cause. That is because both parties were unsuccessful, or successful, depending on which way one looks at it. It is also of some relevance to costs that Crikey proposed amendments to its defence shortly prior to the hearing, no doubt in part due to the issues raised by Mr Murdoch’s interlocutory application.

142    Despite my present inclination, I will, for more abundant caution, allow the parties to consider my reasons for judgment and determine whether they wish to make further submissions so as to persuade me that some other costs order is appropriate. The parties may also, of course, reach an agreed position in relation to costs. If there is to be a dispute as to costs, I will require the parties to provide short written submissions and, unless persuaded otherwise, will determine the issue on the basis of those written submissions and without oral argument. I will at this point simply order that costs be reserved.

CONCLUSION AND DISPOSITION

143    For the detailed reasons that have been given, Mr Murdoch’s interlocutory application dated 22 September 2022 is to be dismissed. So too is Crikey’s interlocutory application dated 5 October 2022. The costs of the interlocutory applications will be reserved.

144    I might finally add that I have resolved the burning issue concerning the etymology of the word “furphy”. Senior counsel for Mr Murdoch, who submitted that the pleading of Crikey’s public interest defence was, or raised, a furphy, suggested that “furphy” was an Irish word, essentially (and perhaps understandably) because it rhymed with “Murphy”. The word “furphy” is, however (at least according to that reputable source, Wikipedia), Australian slang for an erroneous or improbable story that is claimed to be factual. It is said to derive from water carts, made by J Furphy & Sons of Shepparton, Victoria, that were used to cart water to Australian troops during the Second World War. Apparently, the diggers would congregate around the carts and exchange rumour and gossip. Whatever may be the origins of the word, for the reasons I have already given, I am unpersuaded that Crikey’s public interest defence, or any part of it, should be struck out on the basis that it is, or raises, a furphy. That is ultimately one of the matters that must be determined at trial.

145    [Postscript: the mere fact that the Furphy family may have been of Irish descent does not, in my view, alter the fact that the colloquialism “furphy” is of Australian origin.]

Associate:

Dated:    28 October 2022