Business owner to sue media for article on employee firing

The owner of a small business was given the green light to continue defamation proceedings against Fairfax Media for articles that alleged he fired an employee who made a misconduct complaint.

Small-business owner Albert Dadon had the applicable limitation period for defamation extended so he could bring proceedings against Fairfax Media, the publisher of a February 2023 and June 2024 article that alleged he fired an employee who complained of misconduct.

The articles were in response to a civil penalty proceeding filed by the employee in question, who went on to file a notice of discontinuance in June 2024. Dadon is no longer the subject of the allegations.

The first concerns notice was not sent to Fairfax Media until July 2024, sixteen months after publication of the February 2023 article, four months after the expiry of the limitation period, and five days after the notice of discontinuance of the civil penalty proceedings.

Justice Timothy McEvoy, who was asked to extend the limitation period, noted there was no “drop dead rule” because statutory regime allowed for the period to be extended in “certain circumstances”.

“I consider that when one stands back and looks objectively at the applicant’s conduct, informed by advice from a number of quarters, he had good reason to delay commencing an action in defamation against the respondent,” Justice McEvoy said in his written reasons.

Dadon became aware of the February article five weeks after its publication and sent a series of emails to his solicitor, Jane Good, for advice and action on the allegations the article improperly imputed conduct that was raised as “mere allegations” in the civil action and failed to report his response to those serious claims.

A week later, he forwarded an email to Good that he received from a former contact at The Australian Financial Review, who allegedly advised him that he could “at the very least … ask the AFR to take [the] item down”.

The next few months proceeded on a similar pathway, with Dadon sending requests to Good for further assistance.

In a July 2023 email, Good attached a draft concerns notice, but mentioned the firm was “reluctant to ‘poke the bear’ as there had been no traction but note your reasons for pursuing this”.

In cross-examination, Good said the reference to “poke the bear” was a concern that they could not control the narrative and there would be “further articles published if we send a concerns notice through to the AFR”.

Preliminary advice from a counsel also referenced the “Craig McLaughlin effect” and “Oscar Wilde effect or Barbara Streisand effect, in which media can subpoena unrelated historical witnesses against you … to give similar fact evidence in support of a truth defence”.

“In these situations the plaintiff can become the one on trial as the defendant media agency tries to discredit the plaintiff by relying on alleged past conduct to support the likelihood that the conduct complained of in the article is not true,” the counsel added.

Eventually, advice was given to hold off on the defamation proceedings until after the civil penalty proceedings concluded on the basis the concurrent proceedings could “substantially disadvantage” Dadon.

Following the first concerns notice in June 2024, Fairfax Media amended the article to make a clarification about the discontinuance. This caused the article to become the second publication in dispute.

Justice McEvoy said having regard to the circumstances Dadon found himself in after the February article, and the fact he did not have unlimited means as a small-business owner, the course he took in the face of legal advice “was, objectively, a reasonable one”.

“Once the civil penalty proceeding had been discontinued, no doubt emboldened by his success on that front, the applicant took up the cudgels against the respondent with respect to the February 2023 article.

“He did so within a matter of days,” Justice McEvoy said.

Even though Dadon was not facing a criminal proceeding, the civil penalty proceeding was still a “serious matter” to be confronted with.

“I am prepared to accept that the applicant took the advice that he had received not to fight on two fronts,” Justice McEvoy said.

“This was a reasonable approach to adopt in all the circumstances, whether or not he was advised that there was a one year limitation period for commencement of the prospective defamation proceedings.”

Justice McEvoy was also unable to accept Fairfax Media’s submissions that Dadon’s case was weak and he was unlikely to be able to prove he suffered or was likely to suffer serious harm to his reputation because it was a difficult view to form “at the present stage of the litigation”.

Likewise, Justice McEvoy stopped short of determining whether the June 2024 article – which contained the amendment – was substantially the same as the February 2023 article. If it remains an issue, it could be considered after Fairfax Media files a defence.

The case: Dadon v Fairfax Media Publications Pty Ltd [2025] FCA 899.