Murdoch, Crikey slammed for 'scorched earth' squabbling

Media mogul Lachlan Murdoch and the publisher of Crikey have been accused of being driven by ego, hubris and ideology in their bitter defamation dispute.

Federal Court Justice Michael Wigney on Tuesday ordered the parties into a second round of mediation before a three-week hearing in October.

"It seems to me that both parties at such a mediation could take stock of what is turning into a scorched earth policy in relation to both sides of the litigation," he said.

"There does seem to be a hint that this case is being driven more by … ego and hubris and ideology than anything else."

Justice Wigney was told earlier Mr Murdoch, as Fox CEO, was culpable for the violent January 6 insurrection of the US Capitol after the 2020 presidential election because of lies told through his television network.

Barrister Michael Hodge KC said while many media sources fuelled a conspiracy theory Joe Biden stole the election from Donald Trump, Mr Murdoch could still be held responsible.

"He controls Fox Corporation. He permitted for the commercial and financial benefit of Fox Corporation this lie to be broadcast in the United States," he said.

"We say that gives rise to culpability where you are allowing and promoting this lie and that lie is the motivation for the insurrection."

Mr Hodge is representing Crikey's publisher Private Media, as well as political editor Bernard Keane, former editor-in-chief Peter Fray, chairman Eric Beecher and CEO Will Hayward.

The defendants were granted more time to file defences to Mr Murdoch's defamation suit over an opinion piece published last June and reposted in August referring to him as an "unindicted co-conspirator" with Trump over the false election claims.

The publisher will add a contextual truth defence on top of its already pleaded defences of public interest and qualified privilege.

The defence, yet to be filed, includes personal communications between the Murdoch family revealed via separate US defamation proceedings brought against Fox by voting equipment company Dominion which claims it was falsely accused of conducting mass voter fraud.

In one SMS, Rupert Murdoch told his son Lachlan and Fox board member Paul Ryan about Trump's "conspiracy nonsense" and refers to Fox talk show host Sean Hannity.

"Wake up call for Hannity who has been privately disgusted by Trump for weeks but has been scared to lose viewers," Rupert Murdoch wrote.

Lachlan Murdoch, in the case against Crikey, claims the articles conveyed a meaning he illegally conspired with Trump to "incite a mob with murderous intent to march on the Capitol" in Washington DC on January 6, 2021. 

Mr Murdoch's barrister Sue Chrysanthou SC called the proposed contextual truth defence vague, saying it did not say how her client was culpable for the state of mind of about 2000 people who stormed the Capitol building on January 6.

Other Murdoch-owned publications, including the Wall Street Journal, New York Post and even Fox itself, had reported that Mr Biden won the election and had disagreed with Trump's claims.

"This defence is not rational, it is not arguable, it's a waste of everyone's time and it serves no legitimate end in the litigation," Ms Chrysanthou said.

She accused Crikey of including masses of material from the Dominion case in the Australian defamation lawsuit purely as part of a campaign against Lachlan Murdoch.

The media executive has previously alleged Crikey had run a campaign against Mr Murdoch to boost subscribers and gain financially.

"They are happy to martyr themselves in this litigation to seek more money on the GoFundMe me campaign ... to turn the case into something that resembles an inquiry and they don't care if they win or lose," Ms Chrysanthou said.

In granting the extension, Justice Wigney cautioned Crikey about deficiencies in its defence pointed out by Mr Murdoch's legal team.

If the flaws were not addressed, the judge said the Fox CEO had a right to apply to strike-out portions of the defence.