Macquarie Bank’s protracted defamation case against the The Australian over a 2005 article about the bank’s involvement with the Beaconsfield Mine has been dismissed with costs.

But while ACT Supreme Court judge Malcolm Gray found the article in question, a story headlined “The Mine Shaft”, was not defamatory and none of the imputations claimed by the bank were made, he also had some stern words for author Michael West and The Australian. His judgment concluded with:

Having regard to what has been now put before me as to the circumstances upon which the article is based, I can only express my disappointment at the approach taken by the authors of the article published in a newspaper that I thought prided itself on accurate and responsible reporting.

It is interesting to note that this severe criticism is not included in stories written about the decision. The Australian, in particular, notably omits the comment from an otherwise balanced coverage of the judgment in today’s edition.

The paper does say that Justice Gray was “critical of elements of the 2005 article,” and that he was “critical about the tone of the original article in The Weekend Australian, saying it took “cheap shots” at the investment bank.”

However that may be a bit of an understatement. To quote Justice Gray: “there is, in my view, no justification for the tone of the article or what can only be described as “cheap shots” that the article takes at Macquarie’s expense.”

Editor-in-chief of The Australian, Chris Mitchell, says in today’s report that the newspaper stands by the original story. He is quoted as saying: “our defence was based on the truth of the article and we maintain that Macquarie Bank had serious questions to answer about its role in the Beaconsfield mine.”

He may be right about the serious questions to be answered by Macquarie, but it is surprising that he raised the issue of the defence of truth.

Firstly, it should be pointed out that the defence of truth was not really relevant in the judgment, despite it being the “predominant issue at trial.” The reason, as Justice Gray observed, is that none of the alleged imputations were actually made in the article. Despite this, he did dedicate some time to the issue. He said:

The gravamen of the defendants’ case on this aspect really came down to seeking to establish that Macquarie had been a party to not properly providing material to the creditors’ meeting of 19 March 2002 and, through Mr Morris, manipulating the meeting to deceive the creditors into voting for the proposal that the administrators had put that Allstate assign to Macquarie the debts owing to it by its subsidiaries. I do not consider the defendant made out this case.

Surely, if The Australian was to raise the issue of the defence of truth in its article today, it should also have included the fact that Justice Gray was highly critical of most of the arguments made to support that defence. To do otherwise could be seen to suggest that the defence was established.

Commendably, The Australian does include, at the end of today’s report, Macquarie Bank’s belief that the judgment “validates Macquarie’s original concern about the article and Macquarie’s actions to protect its reputation.”

Of course, that’s not the opinion of the paper. Today’s story concludes: “Reporter Michael West, who earned a prestigious Walkley journalism award for the story, said the decision was ‘a victory for journalism in the face of intimidation by powerful corporations’.”

A victory indeed, but Justice Gray’s judgment still leaves a bad taste.

Peter Fray

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