Tom is one of the leading media law and defamation silks in Australia, regularly appearing for both plaintiffs and media defendants in Federal and State Courts, including for the main newspaper, television and new media groups in Australia, both at first instance and on appeal. His practice in this area includes breach of confidence and privacy cases, contempt, anti-discrimination cases as they affect the media, and administrative matters. He also practises in commercial and corporate law, and has appeared in a number of contractual and corporate disputes in the New South Wales Supreme Court. His experience in injunctions and urgent relief applications is extensive.
Although Senior Counsel in Australia, Tom will be practising here as a senior junior. He will practise in many of Chambers’ core areas including defamation, breach of confidence and privacy, contempt, anti-discrimination cases as they affect the media, and administrative law.
Here is a selection of cases in which Tom has appeared over the last 10 years:
Quereshi v Brinkworth Films
Currently instructed by Brinkworth Films, the maker of the program “Can’t Pay, We’ll take It Away”, and Channel 5, in a claim for misuse of private information.
Ali and Aslam v Channel 5 Broadcast Limited (High Court, Chancery Division)
Currently instructed for the defendant Channel 5 in a claim in the High Court for misuse of private information.
Royal Guardian Mortgage Management Pty Ltd v Nguyen  NSWCA 88 (CA)
Appeared for the successful appellant. Court of Appeal ordered new trial because of denial of procedural fairness as a result of excessive judicial intervention in the course of the trial. The Court also overturned adverse credit findings against appellant’s principal witness.
Duffy v Google Inc.
Appeared for Google in its appeal from the judgment of Blue J in the Supreme Court of South Australia in Duffy v Google Inc. In that case, after a thorough review of Commonwealth authorities that included, among others, Metropolitan International Schools, Bunt, Tamiz, Crookes, Trkulja, Oriental Press Group and Bleyer, the Court held Google liable for search various result snippets, hyperlinked webpages and auto-complete results. The issues on appeal include whether Google became liable for publication after notification, and whether, and in what circumstances, it was liable for the publication of third-party webpages to which the search results hyperlinked. Judgment is reserved.
Georgina Hope Rinehart v TCN Channel 9 Pty Ltd, Nine Network Australia Pty Ltd and Cordell Jigsaw Productions Pty Ltd
Instructed for the plaintiff, who is the proprietor of Hancock Prospecting, a major Australian iron-ore miner. She sued in privacy, malicious falsehood and misleading and deceptive conduct under the Australian Consumer Law, over the intrusive and false depiction of herself in a nationally televised mini-series. The proceedings recently settled at mediation. The terms of settlement prevent the defendants from ever rebroadcasting the series or streaming it electronically, or from selling it online or in any other medium.
Inspector of the Independent Commission against Corruption; Parliamentary Inquiry into Operation Hale
I am currently advising the Hon. David Levine AO QC, the Inspector of the Independent Commission against Corruption (a statutory anti-corruption body with extensive inquisitorial and investigative powers), in his inquiry and report to Parliament on alleged abuses of power by the ICAC in the conduct of Operation Hale. Operation Hale is an investigation by the ICAC into allegations of misconduct by a senior Crown prosecutor. The issues on which my junior Peter Kulevski and I have advised are: the unlawful seizure by officers of the ICAC of mobile phones by means of a notice to produce instead of a search warrant; whether an ex post facto attempt to cure the unlawful seizure by the issue of a warrant made the initial seizure lawful; and whether the Inspector, whose office is established under the law of New South Wales, can require the ICAC to produce to him telecommunication interception material provided to the ICAC by the Australian Crime Commission under Federal law. Because of the immense public interest generated by the inquiry and the associated Parliamentary hearings, the Inspector has publicly released our opinions here and here.
Wagner & Ors v Harbour Radio Pty Limited, Alan Jones, Nine Network Australia Pty Ltd & Ors.
Instructed for the plaintiffs, four brothers who are well-known industrialists. They are suing the Nine Network over a 60 Minutes television broadcast, and Harbour Radio over 34 syndicated radio broadcasts, that accused them of causing the deaths of numerous people in a flood, and of attempting to cover up their responsibility. The defendants have pleaded truth. The proceedings will be heard before a jury.
Dank v Nationwide News Pty Limited and Ors
Appeared for the successful defendants (the Australian arm of News Corporation) in a defamation claim brought by Stephen Dank, a well-known sports scientist, over three newspaper articles in the Sydney Daily Telegraph. The newspaper alleged, inter alia, that the plaintiff had covertly injected WADA-banned peptides into a first-grade rugby league player, John Mannah, who was in remission from cancer at the time, and had thereby hastened Mannah’s death from his resurgent cancer. On14th March 2016, the jury returned a verdict for the defendants on two of the three articles, finding that the allegations concerning Mr Mannah (in particular, that the plaintiff had hastened Mannah’s death by the injection of banned peptides) were true. Although the plaintiff is notionally entitled to damages for the third article, of considerably lesser seriousness, on 17th March the trial judge (who retains the function of the assessment of damages) awarded no sum for damages, by the application of the principles in cases such as Pamplin v Express Newspapers and Burstein v Times Newspapers, and ordered the unsuccessful plaintiff to pay the newspaper’s costs.
Cheikho v Nationwide News Pty Ltd
Appeared late in 2015 for the defendant, the publisher of the Sydney Daily Telegraph, which was sued over four articles said to give rise to imputations, inter alia, that the plaintiff was a Muslim extremist, had taken part in a riot and had participated in a violent protest. The jury found for the defendant in respect of three out of the four articles, upholding defences of truth and honest opinion. The plaintiff succeeded on one imputation in respect of the remaining article; it was held by the trial judge (McCallum J) not to be defensible on the basis of qualified privilege. The plaintiff received a modest award of damages from her Honour (the awarding of damages is a function reserved for the judge by statute).
Fairfax Media Publications Pty Ltd and Ors v Bateman and Anor (2015) 321 ALR 726 (CA)
Appeared for the appellants in the Court of Appeal on the question whether David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667, which is Australia’s more limited version of Polly Peck v Trelford  QB 1000 (CA), should continue to be regarded as good law. Held, per Basten JA (Macfarlan JA agreeing; McColl JA, dissenting), Hore-Lacy should no longer be followed. This case puts an end to the ability of defendants to plead “common sting” meanings in defamation proceedings, and has opened up a conflict of authority in Australian appellate courts which will have to be resolved by the High Court.
2015 – briefed for Opel Networks Pty Limited (a joint venture between telco Optus Networks and Elders) in proceedings in the New South Wales Supreme Court, Equity Division, against the Australian Government over the cancellation of the contract between Opel and the Federal Government to establish a rural broadband wireless network. Proceedings have settled.
2015 – briefed in the Commercial List proceedings for Serco Australia Pty Limited, the defendant in proceedings brought by infrastructure management provider RCR Resolve FM Pty Limited, involving RCR’s management of Federal Government immigration and detention facilities. Proceedings have settled.
Yu v Cao  NSWCA 276 (CA)
Appeared for the successful appellant who had been the subject of a large non-party costs order in the District Court. The appeal involved the principles applicable to the exercise of the discretion to award costs against non-parties. The Court held that the circumstances of the case were not such as to warrant, in the interests of justice, the exercise of the exceptional power to make a non-party costs order the appellant.
Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538 (CA)
Appeared for Fairfax, respondents and cross-appellants in a very long-running case arising out of a restaurant review, in its third time in the Court of Appeal, after three first instance trials [and one trip to the High Court of Australia: (2007) 230 CLR 291]; the issue in this appeal was damages. The plaintiff was partially successful, but Fairfax also succeeded in its cross-appeal that the judge had misapplied mitigation principles.
Rinehart v Nine Entertainment Co Holdings Ltd and Nine Network Australia Pty Ltd  NSWSC 239 (Supreme Court)
Appeared for the plaintiff (see above) in her successful interlocutory application for preliminary discovery to force Channel 9 to produce for inspection the second episode of a miniseries about the life of the plaintiff, due to be broadcast two days later. Injunction proceedings the next day resulted in substantial cuts being made to the program.
Fairfax Media Publications Pty Ltd and Anor v Pedavoli (2015) 326 ALR 737 (CA)
Appeared for the appellant; issues included whether publication occurred – the plaintiff was not named – the adequacy of an offer of amends under statute; quantum of general damages and aggravated damages.
Born Brands Pty Ltd and Ors v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421 (CA)
Appeared for the respondent Nine Network on the plaintiffs’ appeal from the dismissal of their defamation proceedings. Issues included the proper construction of the contextual truth defence contained in Australia’s uniform national defamation law; and the circumstances in which for-profit corporations are entitled to sue; appeal dismissed. An application by the appellants for leave to appeal to the High Court of Australia was refused (French CJ and Bell J).
2014 – advised and appeared in Commercial List proceedings for Lantern Hotel Group Limited (ASX listed) against Millinium Asset Services Limited, the trustee of a unit trust, over the alleged breach of the terms of an off-market buyback. Proceedings have settled.
2013 – Advised ASX listed company iCash Payment Systems Limited in its dispute with minority shareholders in Korea. The dispute has resolved.
Milisits v The State of South Australia (2014) 119 SASR 538 (Full Court)
Appeared for Vili Milisits OAM, the owner of one of Australia’s most successful bakery businesses, in appeal proceedings in the Full Court of the Supreme Court of South Australia, defeating a claim of Public Interest Immunity asserted by the State of South Australia. An application by the State for leave to appeal to the High Court of Australia was refused (French CJ and Keane J).
Toben v Milne  NSWCA 200 (CA)
Appeared pro bono in the Court of Appeal for a Greens Senator, Christine Milne, the respondent to the appeal, who was the defendant in defamation proceedings brought by a well-known Holocaust denier, Frederick Toben. The appeal was dismissed.
Clive Palmer v Nationwide News Pty Limited  QSC 174
Appeared for the defendant, Nationwide News Pty Limited, the publisher of The Australian newspaper, in defamation proceedings in the Queensland Supreme Court brought by businessman, MP and leader of the Palmer United Party, Clive Palmer. His case suffered a major setback after Justice Boddice struck out almost half of the imputations pleaded in his statement of claim. Boddice J ordered Mr Palmer to pay Nationwide’s costs of the proceedings. After this judgment the case settled with no ongoing restrictions on publication by Nationwide and no financial terms.
Dank v Cronulla Sutherland District Rugby League Football Club Ltd and ors  NSWCA 288 (CA)
Appeared for Nationwide News Pty Limited, publisher of the Sydney Daily Telegraph, in defamation proceedings against the publisher of the Daily Telegraph commenced by sports scientist Stephen Dank over allegations of doping in the National Rugby League and Australian Football League. The above appeal involved an unsuccessful attempt by Dank to overturn various interlocutory rulings. Dank was ordered to pay Nationwide News’ costs on an indemnity basis.
7 Network Operations Ltd v Brown  NSWSC 372
Appeared in Commercial List proceedings for Melanie Brown (aka Scary Spice) in proceedings brought by Channel 7 for breach of contract and injunction proceedings against her and the Channel Nine Network to stop her from appearing on the Australian version of The X Factor.
The Age Co Ltd v Liu (2013) 82 NSWLR 268 (CA)
Appeared for the appellant (publisher of the Melbourne Age) and three of its journalists in an appeal from an order for preliminary discovery. The issues on the appeal included the constitutional validity of the applicable Supreme Court Rule in its current form; and whether the so-called “newspaper rule” required strengthening in the light of the implied constitutional freedom of political communication. An application for leave to appeal to the High Court was refused, although the High Court sat three judges instead of two on the application for leave (Hayne, Bell and Gageler JJ).
Candy v Bauer Media  NSWSC 979
Appeared in the New South Wales Supreme Court, Equity Division, for Bauer Media Australia in Holly (Candy) Vallance’s proceedings against Bauer for permanent injunctions and damages for breach of contract, breach of confidence and privacy. Defeated Ms Vallance’s application for an injunction.
Appeared for Harbour Radio Pty Limited in defamation proceedings brought by former Magistrate Pat O’Shane. This appeal involved whether the principle of judicial immunity prevented the examination of her conduct on the bench, and whether the principle, if it prevented such examination, was consistent with the implied freedom of political communication in the Federal Constitution. The Court held that a discussion of judicial conduct was not a political or government matter that attracted constitutional protection, but also held that Ms O’Shane was not entitled to invoke judicial immunity to prevent Harbour Radio defending.
Fairfax Digital Australia & New Zealand Pty Ltd and Ors v Ibrahim (2012) 83 NSWLR 52; 263 FLR 211 (CCA)
Appeared in the Court of Criminal Appeal for the appellants, Fairfax Digital Australia & New Zealand Pty Limited, Fairfax Media Publications Pty Limited, News Digital Media Pty Ltd, Nationwide News Pty Limited, Australian Broadcasting Corporation, Yahoo!7 Pty Ltd, Seven Network (Operations) Limited and Ninemsn Pty Limited in proceedings involving the constitutionality of the Court Suppression and Non-publication Orders Act 2010 (NSW) in its interaction with Federal legislation, the Broadcasting Services Act 1992 (Cth), and the extent to which those laws were inconsistent. The Court held that to the extent that the Court Suppression and Non-publication Orders Act 2010 permitted a court to make orders requiring an internet content host to remove or otherwise restrict access to content, or to inquire of or monitor the content hosted on its websites, the nature of which it was not aware of, it was inconsistent with Schedule 5 of the Broadcasting Services Act 1992 and pursuant to s 109 of the Federal Constitution such orders were invalid.
Administrative law; judicial review. Appeared in the Federal Court of Australia for Harbour Radio Pty Limited on application for judicial review of a decision by the Australian Communications and Media Authority under the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012. Questions involved whether the decision was in excess of jurisdiction conferred by s 125 Broadcasting Services Act 1992 (Cth); whether relevant jurisdictional facts existed; whether the standard was reasonably or rationally proportionate to primary power.
Roozendaal v Fairfax Digital Australia and New Zealand Pty Ltd and Another – (2015) 232 FCR 487; 324 ALR 346 (Federal Court)
Appeared for defendants on question whether in a civil trial in the Federal Court of Australia, the Court should empanel a jury, having regard to the procedural law of New South Wales (the proceedings having been issued in the New South Wales District Registry of the Federal Court), and the historical mode of trial of defamation actions in New South Wales which was by jury.
Fairfax Media Publications Pty Ltd v Alex  NSWCA 273 (CA)
DEFAMATION — Defamation Act 2005 (NSW) — Pleadings — Imputations — Uniform Civil Procedure Rules 2005, r 14.30 — Where ambiguity — Not to be left to jury subject to clarification.
DEFAMATION — Pleadings — Whether matter published capable of conveying defamatory imputation.
Liu v Fairfax Media Publications Pty Ltd – (2012) 84 NSWLR 547; 93 ACSR 26
Appeal involving a consideration of competing statements in English decisions as to whether the scope of “without prejudice” privilege was restricted to admissions made in the course of settlement negotiations: Muller v Linsley  PNLR 74 at 79 (Muller) per Hoffman LJ; Bradford v Bingley plc v Rashid  1 WLR 2066 ;  4 All ER 705 compare Ofulue v Bossert  1 AC 990 ;  2 WLR 749 ;  3 All ER 93 at  per Lord Rodger and  per Lord Neuberger.
Commonwealth of Australia As Represented By the Department of Industry, Innovation, Science, Research and Tertiary Education v Fairfax Media Ltd and Anor  NSWSC 1336
Appeared for defendants in the Supreme Court, Common Law Division, against the Commonwealth of Australia in application to restrain defendants from having access to documents held in Court by the Prothonotary, the documents having been the subject of an application under the Freedom of Information Act 1982 (Cth).
Hyndes v Nationwide News Pty Ltd; Nationwide News Pty Ltd v Hyndes  NSWCA 349
Appeared for respondent/cross-appellant on plaintiff’s appeal from jury verdict. Jury had been satisfied of the substantial truth of the imputations and had found for the defendant. Whether the verdict unreasonable or not open on the evidence. Discussion of Hocking v Bell  HCA 16 ; 71 CLR 430. Appeal dismissed. Cross-appeal involved an application by the successful defendant for indemnity costs following failure to accept reasonable offer. Interaction with Uniform Civil Procedure Rules 2005 (NSW); whether offers reasonable; whether failure to accept the offer was unreasonable. Whether the application, made under Defamation Act 2005 (NSW), s 40 involved the exercise of a discretionary power.
Fairfax Media Publications Pty Ltd v Cummings; Fairfax Media Publications Pty Ltd Kate Lahey and Fairfax Printers Pty Ltd v Cummings (2013) 280 FLR 238 (CA)
Appeared for appellants who attempted unsuccessfully to have two proceedings, brought for the admitted purpose of avoiding a statutory cap on damages, consolidated. The issue was whether the bringing of two proceedings was in the circumstances an abuse of process. Effect of amendments to Civil Law (Wrongs) Act 2002 (ACT) on common law following Thompson v Lambert; whether Civil Law (Wrongs) Act 2002 (ACT) s 133 determinative.
Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) (2012) (2012) 201 FCR 389; 289 ALR 345 (Federal Court)
Civil and political rights; anti-discrimination. Claim brought under section 18C of the Racial Discrimination Act 1975 over the publication of some 500 blog comments on the defendant newspaper’s website, commenting the deaths of three indigenous children in a stolen car. The claim was brought by the mother of the children. Issue was whether comments contravened s 18C of the Racial Discrimination Act 1975, and whether comments were exempt pursuant to s 18D of the Racial Discrimination Act 1975. In the result, only 12 of the blog comments were found by Barker J to be in breach of the Act.
The Korean Times Pty Ltd and Anor v Un Dok Pak  NSWCA 365 (CA)
Appeal involving whether the defence of common law qualified privilege should, exceptionally, apply to a confined publication in Korean language newspaper; whether reciprocity of interest and duty established.
Gacic v John Fairfax Publications Pty Ltd & anor  NSWCA 362 (CA)
Further appeal in long-running defamation case involving a restaurant review. The trial judge found for the defendants, but the verdict was overturned by the Court of Appeal, which held that the reader would have understood the review to refer to both of the establishment’s restaurants, and since the reviewer had only eaten at one, the defence of fair comment must fail.
Snedden v Nationwide News Pty Ltd  NSWCA 262 (CA)
Appeared for the successful defendant, the respondent to the appeal. The plaintiff was a naturalised Australian citizen also known as Dragan Vasilijevic, “Captain Dragan”, and had been a militia commander for the breakaway Serbian enclave of Krajina during the Civil War in the former Yugoslavia. He sued The Australian newspaper for alleging that he had committed war crimes that included mass murder, torture and rape. The claims were defended on the basis of truth. The defendant went to substantial expense and difficulty to locate and bring to Australia numerous witnesses who testified against the plaintiff; a number of other witnesses gave video link evidence from a specially convened court in Zagreb. Latham J found that all the allegations were true. The plaintiff’s appeal was dismissed. Although the plaintiff had been mentioned unfavourably in the course of certain proceedings in the International Criminal Tribunal for the former Republic of Yugoslavia, he had not been the subject of any charges, and was at liberty in Australia. In consequence of the evidence given in the trial, the Republic of Croatia (which had jurisdiction under the rules of the ICTY) successfully sought an order for the extradition of the plaintiff, and he is currently on trial in Croatia for war crimes.
Hogan v Australian Crime Commission & ors (2010) 240 CLR 651 (High Court of Australia)
Appeared in the High Court of Australia for Nationwide News Pty Ltd and John Fairfax Publications Pty Ltd on an unsuccessful appeal by the actor Paul Hogan to prevent the publication documents which he had deployed in Court proceedings against the Australian Crime Commission, and in respect of which legal professional privilege had been waived; and whether because of their highly sensitive nature (as documents relating to his taxation arrangements) they should continue to be the subject of various orders restricting their publication to prevent prejudice to the administration of justice. His appeal was dismissed.
West Australian Newspapers Ltd & anor v Bond (2009) 40 WAR 164 (CA)
Appeared for the appellants, a newspaper proprietor and journalists, from a Norwich Pharamacal order made in favour of a formerly prominent industrialist who had served a prison sentence for various white-collar crimes. He intended bringing actions for breach of confidence, breach of privacy and conversion in respect of confidential correspondence about his business affairs that had found this way in the hands of the newspaper. He sought inspection of audiotapes that would reveal the identity of the appellants’ confidential source. The issues included the common law’s recognition of the public interest in the free flow of information by the imposition of restraints on the disclosure of the identity of a media proprietor’s or journalist’s confidential sources, and whether the information revealed by a source confidentially appears to be a matter of genuine public interest; including whether the information discloses an iniquity. The appeal was allowed and the order was set aside.
R v Baladjam & ors (2008) 270 ALR 92
Appeared for various national television networks and newspapers. Trial of 12 defendants on charges of terrorism offences commenced in Melbourne; nine accused to be tried in Sydney on charges of terrorism offences. Evidence of communications between one defendant in Melbourne trial and certain accused in Sydney case to be adduced in Melbourne trial — National media outlets reporting on court proceedings in Melbourne trial — Accused in Sydney case applied for quia timet injunction to restrain threatened contempt of court and for suppression orders with respect to certain identifying information — Applications refused.
Commissioner of Police v Nationwide News Pty Ltd and Anor (2007) 70 NSWLR 643 (Court of Appeal)
Public interest immunity; appeal (allowed in part) by the Commissioner of Police from the refusal of a non-publication order for information previously disclosed in open court; appellant claimed anonymity of certain persons should be preserved with assigned pseudonyms for limited disclosure of identified classes of information, being procedures to be followed by undercover offices in circumstances where a crime was on the point of being committed. The Commissioner claimed that the first instance Judge had erred in holding that certain material did not contain specific or explicit information regarding applicant’s practice and policy.
John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 (Court of Appeal )
Appeared for successful appellant in proceedings involving various defamation defences at common law and under the Defamation Act 1974.
State of Western Australia v Armstrong and West Australian Newspapers Pty Ltd  WASCA 204 (CA)
Successfully defended the proprietor and editor of the “West Australian” newspaper on a charge of contempt of court.
John Fairfax Publications Pty Ltd and another v Gacic (2007) 230 CLR 291; (2007) 235 ALR 402 (High Court of Australia)
Appeared for appellants on their appeal to the High Court of Australia on the proper construction of section 108 of the Supreme Court Act and whether and in what circumstances it empowered an appellate court to enter its own verdict where it had determined that a jury verdict was unreasonable.
Regina v Lodhi (2006) 163 A Crim R 448 (Supreme Court, Criminal Division)
Criminal law — Terrorism — Media interest — Implied freedom of speech
Courts and judicial system — Cross-vesting — Terrorism offences — Discretion
Constitutional law — Constitution — Implied rights, freedoms and immunities — Terrorism offences.