News Corp stories alleging Sam Groth began dating his wife, Brittany, while she was underage were far from “idle gossip” given the claims were being “weaponised” by rivals of the Victorian Liberal MP, who aspires to become premier, the publisher has told a court.
The Herald and Weekly Times (HWT), reporter Stephen Drill and Herald Sun editor Sam Weir are being sued in the federal court over a series of articles published in July. Groth is suing for defamation while his wife has launched the first test case of new laws for serious invasions of privacy.
The articles allege the couple met at a tennis club in suburban Melbourne and began a sexual relationship when Brittany was 16 or 17 and Sam – then a professional player – was 23 or 24 and working as her coach, the court has been told.
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In a court hearing on Thursday HWT lawyer, Matthew Collins KC, argued the tabloid was protected from claims under the new privacy laws – which allow damages of up to $478,000 – due to an exemption provided for journalists.
Collins said the laws explicitly define the exemption as applying to those who work as journalists, follow an applicable code of conduct and produce material “with the character of news, current affairs or a documentary” or “commentary or opinion”.
He said that the articles weren’t “idle gossip of the kind one might read in glossy women’s magazines”, but “precisely the sort of journalism which was supposed to be the subject of the exemption”.
“What is journalistic material, plainly, is that which the editor of the Herald Sun has put on the front page of the newspaper,” Collins told the court.
He said the articles were in the public interest given they concerned “a person who aspires to be deputy premier of the state and who has announced ambitions one day to be the premier of the state”.
Brittany Groth (left) and her husband, Sam (centre) are suing the Herald and Weekly Times. Photograph: Damian Shaw/AAP
Collins told the court they were also based on information already in the public domain, as the couple had spoken about meeting at a suburban tennis club in previous interviews.
“Like it or not, the article is reporting that that relationship has been weaponised. This is not the scurrilous, purely private exposure of an adulterous affair or behaviour at a private party,” he said.
“It was being weaponised in a febrile atmosphere in this state, where notoriously, the state Liberal party has been tearing itself apart, and where we have a government [which] notoriously … weaponises information against the opposition for its own political advantages.”
Collins said it was “not a good test case” for the new laws, as it was a “front page article in the highest selling daily newspaper in the state with public interest components”.
Sue Chrysanthou SC, representing the Groths, argued that the exemption question should be heard concurrently with the trial.
She argued the story didn’t meet the characteristics of news, as it wasn’t a “factual presentation of information”. Rather, it was “piece of gossip” passed on by “some politician in the Liberal party last December”, she told the court.
Chrysanthou said if the relationship had begun when Brittany was underage and the matter had been reported to police, publishing her name would have been illegal.
“The only thing saving the respondents from a criminal charge is the fact that the allegation was so specious, was so lacking in any basis, that no one had reported it to the police,” she said.
“It is not something that should ever have been spoken publicly, let alone published on the front page of Melbourne’s most-read newspaper.”
Chrysanthou urged the court to proceed to a trial as planned in May, noting the couple were paying their own legal costs.
Judge Shaun McElwaine said the case raised “difficult questions” and agreed that even though it was still in early stages, the costs incurred “have been significant”. He said this should be emphasised to the parties as they meet for mediation on Friday.
McElwaine reserved his decision on whether the exemption argument would be heard separate to the trial.
