20 December 2019
On 20 December 2019, former Federal MP, Dr Dennis Jensen was awarded $325,000 in damages and interest by the WA Supreme Court against Nationwide News Pty Ltd, which owns The Australian masthead, and its journalist, Andrew Burrell.
The case related to 2 articles written by Mr Burrell and published in The Australian on 31 March and 1 April 2016, immediately prior to the preselection for the Liberal Party for the Division of Tangney. Dr Jensen was the incumbent MP since 2003 and had been challenged by former Liberal Party State Director, Mr Ben Morton who went on to win the preselection and the election. Immediately following the articles, Dr Jensen engaged Martin Bennett and Nikki Randall at Bennett + Co to act and commenced proceedings for defamation.
In a trial of separate issues as to the meaning of the articles held in May 2019, a jury found that the first article was not defamatory of Dr Jensen, finding that the article did convey that back in 2007 Dr Jensen had improperly exploited his Parliamentary letterhead for personal financial gain but that this was not defamatory of him (this is pending appeal). The jury found that the second article conveyed various defamatory statements imputing that Dr Jensen had abandoned his family and his electorate.
The trial of the pleaded defences and damages was heard and determined by Chief Justice Peter Quinlan in May and June 2019. His Honour emphatically rejected The Australian’s and Mr Burrell’s defences of qualified privilege and justification, finding that the articles were published in some of the alleged circumstances of aggravation.
Chief Justice Quinlan found that while a letter on Parliamentary letterhead existed, Dr Jensen had in fact not sent it, and his Honour rejected that a Federal Member of Parliament who does not live in their electorate fails to act in the best interests of their constituents. His Honour was scathing of Mr Burrell’s failure to afford Dr Jensen a proper opportunity to respond to the matters being written in the articles, finding that his and The Australian’s conduct was unreasonable, such that their qualified privilege defences must fail. Criticism was also made of The Australian’s and Mr Burrell’s “woefully inadequate” approach to discovery in the pre-trial processes.
Mr Burrell had previously counterclaimed against Dr Jensen for statements that Dr Jensen made on radio to the effect that Mr Burrell had breached his duties as a journalist by failing to afford Dr Jensen a proper right of reply. Mr Burrell abandoned his counterclaim just prior to the jury trial. On the basis of Chief Justice Quinlan’s findings, Dr Jensen’s truth defence would likely have succeeded.
His Honour found that Dr Jensen’s evidence was truthful and generally reliable. On the other hand, Mr Burrell was found to have displayed a ‘nonchalant’ demeanour and appeared to be reconstructing events rather than recalling them, and could not provide explanations on a couple of key aspects of the evidence, rendering his evidence generally unreliable.
Dr Jensen was successfully represented at trial by the Bennett + Co team, Martin Bennett as lead counsel with Alex Tharby as junior counsel, instructed by Dominique Le Miere.
The Australian and Mr Burrell were represented by defamation specialist, Tom Blackburn SC (Barrister at 5RB Barristers and Banco Chambers) as lead counsel with Jason MacLaurin SC (Barrister at Francis Burt Chambers) instructed by Macpherson Kelley solicitors, who regularly act for Nationwide News.
The judgment represents a significant victory for an individual litigant against a national media organisation. It comes at a time where media organisations are pushing for added protections including for changes to the statutory qualified privilege defence and a new defence of responsible journalism. If introduced, such a defence would not likely have assisted them on this occasion given the findings made by the Chief Justice.
Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.
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