A NSW Supreme Court jury rejects Fairfax Media’s contextual truth defence after Justice Robert Beech-Jones allows the defendant to “plead back” two imputations the jury found to be true … Damages hearing to follow.
After a final deliberation on the contextual truth defence, Fairfax Media has lost the defamation action brought by Lili Chel, former owner of infamous King Cross nightclub, The Rouge.
On 23 February 2017 after a four-week trial, a jury of two men and two women found Fairfax had failed to prove the truth of two imputations pleaded by Chel (seen here with her husband, former Nomads president Scott Orrock):
(a) The plaintiff engages in disgraceful conduct by allowing onstage sex at her nightclub.
(b) The plaintiff was a menace to patrons of her nightclub because she did not prevent drink spiking on the premises.
The jury found the following two imputations Chel pleaded were true:
(f) The plaintiff breached her liquor licence because she hosted a party at her nightclub that involved strippers, dildos, whips and on-stage sex.
(g) The plaintiff breached the council’s development consent because she hosted a party at her nightclub that involved strippers, dildos, whips and on-stage sex.
It also found one contextual imputation pleaded by Fairfax to be true:
“The plaintiff conducted a nightclub which was targeted by police as part of a crackdown on bikie gangs.”
The jury had earlier rejected the publishers’ “fair report” defence.
On Friday (February 24) in an unusual move according to NSW authority in Kermode v Fairfax, Justice Robert Beech-Jones allowed Fairfax to “plead back” its two “true” imputations as contextual truth imputations.
The jury was asked to decide whether the media company had established that Chel’s untrue imputations did not “further harm” her reputation, given the substantial truth of Fairfax’s three contextuals.
It answered “no”.
The matter will proceed to a damages hearing on 31 March 2017.
For the plaintiff: Clive Evatt and Roger Rasmussen instructed by Beazley Singleton Lawyers.
For the defendants: Tom Blackburn SC and Lyndelle Barnett instructed by Leanne Norman, Phil Beattie and Courtney Scallan of Banki Haddock Fiora.
This report was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.