Fairfax’s Kazal defence strategy diluted by Chris Merritt - The Australian

In the midst of losing another editor-in-chief, it would be completely understandable if those running Fairfax Media were to overlook the setback they have just suffered in the wonderful world of defamation.

Last Friday, judge Lucy McCallum of the NSW Supreme Court emasculated the defence strategy the publisher wanted to use against a defamation claim by businessman Oscar Kazal.

It concerns two articles in The Sydney Morning Herald about the Kazal family — one by Linton Besser entitled “Bad company”, and one by Kate McClymont.

This case has a long way to go but it has already forced Fairfax to avoid trying to prove the truth of pleaded imputations in those articles that concern corruption.

Relations between the parties are extremely strained. Fairfax management has received waves of complaints from Oscar Kazal, a futile request from the Australian Human Rights Commission inviting the publisher to attend a mediation and even a letter about the row from politician Fred Nile to former Fairfax chairman Roger Corbett.

At the height of the row Besser, who is now at the ABC, was in talks with police about an apprehended violence order. This featured in a 2013 speech by McClymont, subsequently published online, which now features in Oscar Kazal’s statement of claim.

None of that is as interesting as the fact that Fairfax will not be defending the truth of the key imputations pleaded to have arisen from Besser’s article and McClymont’s speech.

Those imputations concern corruption in dealings with politicians and government authorities and caused quite a stir when McClymont spoke at the 2013 press freedom dinner.

Instead, the pleaded imputations that have attracted Fairfax’s use of the defence of truth concern “intimidation or discreditable conduct towards a Herald journalist and towards a former business partner of the Kazal family”, Roderic David.

All this seems to have been overshadowed by the fuss caused by the departure of SMH editor-in-chief Darren Goodsir.

Goodsir is the journalist whose “animus” was criticised by the Federal Court in the 2015 defamation case that was won by former treasurer, now US ambassador, Joe Hockey.

In that case, the SMH was denied the defence of qualified privilege because a headline had been motivated by malice.

Malice is also being alleged by Kazal. And Fairfax is again running the defence of qualified privilege along with the defence of honest opinion.

On Friday, Justice McCallum weakened Fairfax’s position. She struck out the defence of contextual truth and a vast tract of particulars about the conduct of other members of the Kazal family that Fairfax wanted to use to help mitigate any damages.

The judge was having none of it. “How any of that conduct is to be visited upon the plaintiff, to his discredit, is unclear,” she said.

More about this case on http://www.kazalfamilystory.com

This article was originally posted in The Australian by Chris Merritt.

Kazal Family Story is about the corporate theft of $180M by Rodric David and how he got away by help of Sydney Morning Heralds journalists Linton Besser and Richard Baker

Nicholas M Heron
65 Noalimba Avenue, KINGS PLAINS,
NSW, Australia

This release was published on openPR.