McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224

McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224

The court held that the defence of substantial truth should only go to the jury on those imputations for which there was sufficient evidence, and not where evidence was lacking as a matter of law. For the defence of contextual truth, the jury should disregard any imputation found to be substantially true when assessing 'further harm' under s26 of the Defamation Act 2005, and the defence can be presented cumulatively with substantial truth. The relevant question for the jury is whether the combination of untrue defamatory stings does further harm, not including those found to be true.

Parties
Plaintiff: Bryan McMahon; First Defendant: John Fairfax Publications Pty Limited; Second Defendant: Marcus Priest; Third Defendant: Rachel Nickless
Jurisdiction
Australia
Judgment Date
16 March 2012
Procedural Posture
Defamation and Injurious Falsehood / Procedural and Other Rulings During Jury Trial
Outcome
Rulings on defence withdrawal and jury question form during ongoing trial; not final determination of liability or damages.
Legal Topics
Substantial Truth, Contextual Truth, Defence Withdrawal, Jury Directions, Injurious Falsehood
Defamation Substantial Truth Contextual Truth Defence Withdrawal Jury Directions Injurious Falsehood

Case Brief

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Parties

Bryan McMahon

Plaintiff

John Fairfax Publications Pty Limited

First Defendant

Marcus Priest

Second Defendant

Rachel Nickless

Third Defendant

Procedural Posture

Defamation and Injurious Falsehood / Procedural and Other Rulings During Jury Trial

Legal Issues

  1. 1 Whether the defence of substantial truth should be withdrawn from the jury for certain imputations
  2. 2 How the defence of contextual truth should be left to the jury, including basis on which 'further harm' is assessed under s26 of the Defamation Act 2005
  3. 3 The evidentiary basis for leaving or withdrawing truth defences

Ratio Decidendi

The court held that the defence of substantial truth should only go to the jury on those imputations for which there was sufficient evidence, and not where evidence was lacking as a matter of law. For the defence of contextual truth, the jury should disregard any imputation found to be substantially true when assessing 'further harm' under s26 of the Defamation Act 2005, and the defence can be presented cumulatively with substantial truth. The relevant question for the jury is whether the combination of untrue defamatory stings does further harm, not including those found to be true.

Court Disposition

Rulings on defence withdrawal and jury question form during ongoing trial; not final determination of liability or damages.

Orders

  • Certain parts of the truth defence withdrawn from the jury for lack of evidence.
  • Jury directed to disregard any imputation found substantially true when considering contextual truth.