How a small legal concession made a massive change to the dimensions of Murdoch v Crikey

Michael Bradley was Crikey’s lawyer in Lachlan Murdoch’s case against Private Media.

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On with the show. In late 2022, the parties to the Murdoch v Crikey defamation case were deep in the “evidence” phase of proceedings, meaning they were gathering witnesses and getting their testimonies sorted out. 

Unlike the United States, in Australia the concept of a deposition — where each party gets a crack at cross-examining their opponent’s witnesses under oath before the trial begins — is unknown. In Australian defamation cases, the usual process is that we get to know the identities of the other side’s witnesses and an outline of what they’re going to say in the witness box. It’s much less entertaining than the American way.

I can’t share anything about who Murdoch’s witnesses were or what they said, but I can say there were quite a few of them. Crikey had two: Bernard Keane, the writer of the piece in question, and Peter Fray, then Crikey’s editor-in-chief. Their evidence mostly went to how the article came into existence and what was in their heads at the time — critical for the purpose of establishing that they reasonably believed they were publishing in the public interest if that defence was going to stack up. As an interesting side-note, Keane asserted that he had not had Lachlan Murdoch in mind at all when he wrote about the “Murdochs”.

The next step was discovery, the compulsory sharing with each other of every document that is relevant to an issue in the case. That was followed by interrogatories, which are lists of tedious questions each side asks the other to try to get some admissions or short-cut factual disputes that would otherwise have to be played out in court.

Inevitably, there were disputes about these procedures, taking the parties back in front of Justice Michael Wigney at the end of November for a mutual and traditional round of complaining that the other side was behaving badly. His honour was not keen on this at all, pointing out to Murdoch’s counsel that she was seeking 180 interrogatories (that’s quite a lot) and asking her pointedly, four times in one minute, whether she wanted to keep the March trial date and telling her to drop the interrogatories if she did.

The judge having calmed his farm (he got on the bench the next morning and promised to be “much more Zen-like” — see, judges are people too), a lengthy and mostly boring argument about evidence proceeded.

However, something interesting did happen, missed by the media because it was one of those things you had to be a lawyer to notice and care about, but it would trigger a massive change to the dimensions of the case and lead to other consequences, unforeseen at the time.

I mentioned in an earlier episode that Crikey had published its article twice: on June 29 (taking it down the following day); and then republishing it on August 15. Murdoch, in his statement of claim, had explicitly stated that he was suing only on the original June 29 publication, and was relying on the republication only with respect to aggravated damages.

The point is, for legal purposes, these were two separate publications. Murdoch could have sued on both — and you’d have thought he would, because it was the republication that stayed online permanently, identified him clearly as its target, and was accompanied by a campaign that took the story global — but he hadn’t. That was, presumably, a conscious choice.

During the argument on November 30, Murdoch’s counsel made a submission that took us by surprise. She was complaining that Crikey’s witnesses had given no evidence about anything they’d done after June 30. This was problematic, she said, because of the way the public interest defence works: “Where an internet publication is left online and circumstances change”, she said, “the defence can be lost.”

Simply, it might have been in the public interest to publish something in the first place, but online publication is continuous and the public interest might go away. A classic example would be publishing a credible allegation that A murdered B; if it then became clear that he definitely didn’t, the public interest in the allegation being aired would disappear, taking the defence with it.

That was all very well but, as Crikey’s counsel pointed out when her turn came, this wasn’t a case of continuing publication. It was a case of two separate publications separated by a month and a half, and Murdoch was only suing on one of them. Crikey didn’t need a public interest defence to the August publication, because it wasn’t being sued over it.

What happened next wasn’t hard to guess: as Christmas approached, Murdoch moved to amend his case. He now wanted to sue Crikey for the August publication as well. Unsurprisingly, Crikey opposed the move, leading to another fight during the court vacation in January.

The judge decided to let the amendment through, along with another interesting extra escalation of the dispute by Murdoch. In his original claim, he had elected to sue not just Private Media (Crikey’s parent company), but Fray and Keane personally. He now wanted to join two more individual respondents: Eric Beecher and Will Hayward, respectively Private Media’s chair and CEO. Why? Well, defamation plaintiffs can sue anyone who qualifies as a “publisher”, which is widely defined. Usually they don’t, because they can’t recover their losses more than once and the deep pockets are with the publishing company. Only Murdoch can say why this choice was made; I don’t know.

So, now Crikey was being sued on both publications. This had two immediate consequences: the trial date in March was gone, replaced by a new date in October 2023; and Crikey would have to consider its defences to the claim about the republication. As the circumstances in August 2022 had been very different from those in June, the defences may differ too.

What we suspected, but couldn’t predict, was how significant the opportunity to put on a new defence, coupled with the loss of the March hearing date, was going to prove to be.

Next time: enter Dominion, exit Murdoch.