The Federal Court has granted Lachlan Murdoch leave to significantly expand the ambit of his defamation case against Private Media, the publisher of Crikey, in a move strongly opposed by lawyers for Crikey.
As originally filed, Murdoch’s defamation proceedings, which named Private Media, Crikey editor-in-chief Peter Fray and Crikey political editor Bernard Keane as defendants, had turned solely on a June 29 opinion piece by Keane describing the Murdoch family as an “unindicted co-conspirator” in the January 6 attack on the US Capitol.
The result was to confine the relevance of Private Media’s actions after June 29 — including its decision to repost the article on August 15 as well as publish an open letter in The New York Times inviting Murdoch to sue — to the question of damages.
This much was drawn to the attention of Murdoch’s lawyers in a preliminary hearing in early December, when Crikey’s lawyers rejected an argument that the publisher’s conduct after June 29 had any bearing on its public interest defence.
On Monday, Murdoch’s barrister Sue Chrysanthou SC conceded it was against this backdrop that her client had sought to amend his statement of claim, but maintained that new information obtained in November had also coloured the decision.
“It’s always been our case that the conduct between June 30 and August 15 and subsequent is relevant to [Crikey’s] defences,” she said. “The only effect of the amendment is to change the legal characterisation of those facts.”
To this end, Chrysanthou told the Federal Court that new information had since disclosed a “dishonest, hypocritical, cynical and contrived” publicity scheme on the part of Crikey and its management under Private Media chairman Eric Beecher and chief executive Will Hayward to further “defame and harass” her client.
“I can say plainly it did not enter our minds that [management] would have been part of that editorial decision-making,” she said.
But Crikey’s barrister Michael Hodge KC disputed this, arguing Murdoch was always aware of management’s role and that the bid to widen his statement of claim to enable him to additionally and separately sue on the article’s reposting owed entirely to his failure to comprehend the consequences of his “forensic decision” to sue on the original publication alone.
“The only game here is whether or not Mr Murdoch should be permitted to change the forensic decision he made from the outset, which was to only rely on the republished article for the purposes of damages rather than a separate cause of action in itself,” he said.
Murdoch’s decision to sue on the original publication alone, he added, was driven by his desire to “sue quickly on the heels of The New York Times article and be seen to have sued on the heels of that article”.
“It was explained to [Murdoch] that the problem for him in suing straight away [was] that he wouldn’t be able to sue on the republished article,” he said. “He has made a forensic decision today not to explain his decision to sue straight away, so why should he be granted the indulgence to depart from his forensic choice without explaining why?”
But Justice Michael Wigney said it was questionable whether Murdoch had indeed made a “forensic choice” as opposed to a “forensic error” to sue on the original publication alone.
“It seems that Mr Murdoch was proceeding on the basis that the republished article could be used [to rebut Crikey’s] public interest defence,” he said, pointing out that it was only when Crikey’s lawyers explained otherwise in December that the “penny dropped”.
Noting that parties are not ordinarily “punished for forensic errors”, Wigney ultimately granted Murdoch’s application, thereby enabling him to join both Beecher and Hayward as defendants to the case.
As forewarned by Wigney in December if the application was permitted, the March trial has consequently been vacated and rescheduled to October 9, where it is expected to take up to three weeks.
Crikey’s lawyers have indicated they will revise their defence.
