Lachlan Murdoch’s application to have parts of Crikey’s defence about Fox News’s role in the January 6 riot dismissed has failed in a pre-trial hearing in the federal court.
In August the co-chair of News Corp filed proceedings for defamation against the Australian independent news site over an article by its politics editor, Bernard Keane, headlined “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator”.
Keane argued the former US president Richard Nixon was infamously the “unindicted co-conspirator” in the Watergate scandal and drew an analogy that “the Murdochs and their slew of poisonous Fox News commentators were the unindicted co-conspirators” in the events of 6 January.
Murdoch’s barrister, Sue Chrysanthou SC, had sought to have Crikey’s inclusion in its defence of background facts about Fox News’s coverage of the US election struck out on the grounds they are irrelevant, embarrassing and will waste time at the trial.
Justice Michael Wigney said he was not satisfied the paragraphs “are sufficiently evasive or ambiguous to warrant being struck out” before the trial.
“Legal issues raised by the defences are more appropriately determined when the factual issues relevant to them have been crystallised at trial,” Wigney said in a lengthy verbal judgment on Friday.
Wigney said some of the facts presented by Crikey in its defence – such as Donald Trump lost the 2020 presidential election – were “incontrovertible”.
“Others might be considered by some to be somewhat more controversial or contentious, for example, quote, hosts and guests on Fox News repeatedly cast doubt on the outcome of the 2020 presidential election, close quote.”
But he said Crikey should be allowed to plead them and they will be discussed in detail at trial, set down for nine days from 27 March.
Wigney said Chrysanthou’s assertion that it was obvious that the topic of Keane’s article was in the public interest “appeared to be entirely at odds with” her formal submission “which states in unqualified terms that Mr Murdoch denies the Crikey article concerned an issue of public interest”.
Crikey’s application to have parts of Murdoch’s reply struck out also failed, with the judge saying if Murdoch was able to prove the predominant purpose of the article was harm, this would defeat the defence of public interest.
“Mr Murdoch’s interlocutory application dated 22 September 2022 is to be dismissed,” Wigney said. “So too is Crikey’s interlocutory application dated 5 October 2022.”
Crikey wanted Murdoch’s claim that the publisher had acted in malice struck out.
“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,” Wigney said.
“It is at least reasonably arguable that Mr Murdoch may effectively defeat Crikey’s claim that it reasonably believed that the article was in the public interest by proving that Crikey published the article for the predominant purpose of harming Mr Murdoch.”
Chrysanthou had argued it was not necessary for the court to watch an incalculable number of hours of Fox News coverage to establish whether Crikey could successfully use the new public interest defence.
She argued the new defence – which has not been tested in a case yet – was not applicable to Crikey. “The new dawn promised to the media by reason of this defence is not going to happen,” she said.
Wigney said Crikey’s defence was “not entirely lucid and suffers from a degree of ambiguity and its clarity could no doubt be improved”.
“Nevertheless, I am not persuaded that the deficiencies in the pleading is such that paragraphs one to 16 and 42 could be said to be evasive or ambiguous.”
Murdoch began proceedings after the website republished an article on 15 August, after initially taking it offline when the Crikey editor-in-chief, Peter Fray, received a concerns notice on 30 June.
