At a preliminary hearing on Friday, Justice Michael Lee raised the prospect of appointing a referee to “inquire into and report upon [Mr Murphy’s] medical condition” at an early stage in the proceedings.
Under the Federal Court of Australia Act, a judge may refer “one or more questions arising in a proceeding” to a referee for inquiry and report. That report may then be adopted or rejected by the court.
Justice Lee said this may help to deliver swift justice in the case, and “it just seems to me that the one thing we’re trying to do in these cases is sweep away the encrustation of a whole lot of unnecessary [preliminary argument]”.
Dauid Sibtain, the barrister for Telegraph publisher Nationwide News, said the media outlet would file a defence next week. Its principal position was the column did not convey the defamatory meanings alleged by Mr Murphy’s lawyers.
Mr Sibtain said that on the basis of the defamatory imputations alleged by Mr Murphy’s lawyers there was “simply no case to answer”.
Barrister Sue Chrysanthou, SC, for Mr Murphy, said a referee should not be appointed to inquire into and report on Mr Murphy’s physical health unless and until the Telegraph had filed a defence of truth. It is not yet clear such a defence will be mounted.
“Before any referee could be appointed we’d have to see a properly particularised justification [truth] defence,” she said.
Mr Murphy has represented a string of celebrity clients including Wolf Creek actor John Jarratt, who was found not guilty last year of raping a woman in the 1970s.
It is the second time Mr Murphy has launched proceedings against the Telegraph over a column by Sharp, but a 2017 case settled before the trial.
In support of an award of aggravated damages, Mr Murphy’s lawyers allege the Telegraph and its columnist acted with malice. They say it can be “inferred” the article was published “in retribution” for Mr Murphy launching the 2017 proceedings.
The parties return to court on December 18.
Catch all the day’s breaking news
At the end of each day, we’ll send you the most important breaking news headlines, evening entertainment ideas and a long read to enjoy. Sign up here.
Michaela Whitbourn is a legal affairs reporter at The Sydney Morning Herald.