Defaming the person behind the company - a difficult bridge to cross

His Honour Federal Court Justice Robert Bromwich recently handed down his decision in Triguboff v Fairfax Media Publications1 (click here for the decision).

His Honour dismissed Mr Triguboff’s claim that the Australian Financial Review newspaper (AFR) defamed him by publishing an article about Meriton Property Services Pty Limited (Meriton), of which Mr Triguboff is the founder and managing director.​

Facts

In early August 2017, the AFR published an article titled “Developers offer stamp duty discounts as off-the-plan apartment sales slow”.  The article suggested that developers, including Meriton, sometimes address a slowing in sales of poorer quality apartments by offering stamp duty discounts.

The article reported:

Australia’s biggest apartment developer Meriton is offering a full stamp duty refund for foreign and local buyers who acquire its new apartments in NSW.

Managing Director of CBRE Residential Projects, David Milton, was then quoted as saying:

[F]or property developers like Meriton, in order to sell lower quality products, they have to offer discounts.

The article did not refer to Mr Triguboff. He argued that the article was reasonably capable of being about him, and that it defamed him by portraying him as controlling a company that produces: (i) low-quality apartments, and (ii) apartments of such low quality that it has to offer stamp duty discounts to attract purchasers.

Mr Triguboff commenced defamation proceedings in the Federal Court of Australia against the AFR and the journalist who wrote the article.

Decision

A company with more than 10 employees, which is not an ‘excluded corporation’, cannot sue for defamation.2

This does not prevent an individual associated with a company from suing if they can show they are personally defamed along with the company.

Mr Triguboff argued that as he was the founder of Meriton and due to circumstances of his “general notoriety” in relation to Meriton, the article was reasonably capable of defaming him.

His Honour rejected Mr Triguboff’s arguments and stated:

The publication was not “about” Mr Triguboff.  There is nothing in the article that describes Mr Triguboff as the person being referred to, either directly or by any reasonable inference.4

Section 9 is to be read as a real and effective immunity from a defamation suit brought by most companies, save only that if a publication is not just about such a company, but also about a natural person, the natural person may still sue.5

The statement of claim represents a reasonably flagrant attempt to bypass the limitation in s 9 on Meriton suing for defamation.  If this was allowed, that provision would render s 9 meaningless in many cases.6

A reference to a company is not automatically a reference to the natural person or persons running it, or the person or persons who own it.  An article about a company alone, and without more, is not an article about its owner, however notorious the fact of that ownership.  More is required.  The legal entities are separate unless there is something in the publication to bridge that vital and fundamental legal gap.7

His Honour upheld the AFR’s application to strike out Mr Triguboff’s claim and ordered Mr Triguboff to pay costs.

Lavan comment

This case is a clear reinforcement of the principle of a separate corporate identity and the statutory bar on most companies being able to sue for defamation. 

In order for the “man or woman behind the company” reported on being able to sue for defamation when they are not explicitly referred to, an individual must demonstrate a bridge in the article between he or she and the company.  “General notoriety”, or evidence the individual is publicly connected with the company, will not in and of itself be sufficient.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.
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FOOTNOTES

[1] Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845.

[2] Defamation Act 2005 (NSW), section 9; Defamation Act 2005 (WA), section 9.  

[3] Defamation Act 2005 (NSW), section 9(5); Defamation Act 2005 (WA), section 9(5). 

[4] Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845, [76].

[5] Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845, [79].

[6] Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845, [81].

[7] Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845, [82].​