Agustin-Bunch v Smith (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2020 04786

FARRAH ARSENIA AGUSTIN-BUNCH	First Plaintiff
DRF LLC	Second Plaintiff
v
ADAM CHARLES SMITH	First Defendant
DOC ADAM PTY LTD (ACN 636 853 177)	Second Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2022
DATE OF JUDGMENT:	6 June 2022
CASE MAY BE CITED AS:	Agustin-Bunch v Smith (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 290

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DEFAMATION – Pleadings – Defences – Truth – Form – Failure to identify permissible variants for truth defence and to particularise imputations for contextual truth defence.

DEFAMATION – Pleadings – Defences – Honest opinion – Failure to identify how particulars of truth related to comments defended as honest opinion and how it is contended that the particulars may be relied on as proper material on which to base the opinion.

PRACTICE AND PROCEDURE – Application to strike out parts of defence – Application for leave to file proposed further amended defence – Leave refused as defence affected by extensive and confusing cross-referencing that rendered pleading embarrassing – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.02.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Castelan with Ms E Tadros	Armstrong Legal
For the Defendants	Mr A Anderson	Mills Oakley

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The pleaded defamation defences.................................................................................................. 2

Relevant Principles............................................................................................................................ 5

Truth................................................................................................................................................ 5
Honest opinion.............................................................................................................................. 7
Contextual truth.......................................................................................................................... 11

Plaintiffs’ general submissions..................................................................................................... 13

Truth defence............................................................................................................................... 13
Honest opinion defence............................................................................................................. 19
Contextual truth.......................................................................................................................... 20

Defendants’ general submissions................................................................................................. 20

Analysis.............................................................................................................................................. 20

Truth.............................................................................................................................................. 20
Honest opinion............................................................................................................................ 26
Contextual Truth......................................................................................................................... 29

Conclusion......................................................................................................................................... 34

HIS HONOUR:

Introduction

The plaintiffs by writ seek damages, a permanent injunction restraining the defendants from publishing certain material, and a mandatory injunction for the removal of certain publications from the internet that they allege are defamatory. The second plaintiff (‘DRF’) also seeks damages pursuant to s 236 of the Australian Consumer Law (‘ACL’),[1] contending that the defendants had engaged in misleading or deceptive conduct in contravention of s 18 of the ACL.
[1]Competition and Consumer Act 2010 (Cth) sch 2.

On 12 April 2021, I refused the plaintiffs’ application for an interlocutory injunction restraining the defendants from publishing or causing to be published in any form, or maintaining online for download, or uploading so as to make available for publication online:

(a) 15 specific videos;

(b) hyperlinks to a Facebook group described by the plaintiffs as the ‘Dr Farrah Hate Page’;

(c) certain Facebook and Instagram posts;

(d) the imputations and representations set out in nominated paragraphs of the plaintiffs’ statement of claim; and

(e) any matter of and concerning the plaintiffs to the same purport or effect as any of the publications referred to.

That application was limited to seven defined videos, although publications by certain Facebook and Instagram posts are pursued in the proceeding.

Some background details about the dispute between the parties, including the allegations made by the plaintiffs in their statement of claim, can be found in my reasons for refusing that application.[2] I do not propose to repeat such matters in these reasons. Accordingly it may be desirable to read those reasons in conjunction with these reasons.
[2]Agustin-Bunch v Smith [2021] VSC 158.

By the present application, the defendants seek leave to file a proposed further amended defence. The proposed pleading was further varied before the application was argued, but the plaintiffs were content to address the most recent version being the Proposed Further Amended Defence dated 28 March 2022 (‘PFAD’). The plaintiffs, who issued summons first, seek to have parts of the PFAD struck out.

In essence, the plaintiffs contended that leave should not be granted to the defendants to file and serve the PFAD on the basis that, within the meaning of r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’), large parts of it do not disclose a defence; and/or may prejudice, embarrass or delay the fair trial of the proceeding; and/or are otherwise an abuse of the process of the court.

The pleaded defamation defences

The relevant publications alleged to convey defamatory imputations are videos.

In these videos, Dr Smith speaks partly in Tagalog and partly in English. These publications are directed to a Filipino audience. The plaintiffs plead that a very substantial number of imputations were conveyed by these videos.

Relevantly for this application, the defendants have pleaded defences of truth, contextual truth, honest opinion, and qualified privilege both at common law and relying on the relevant statutory provisions.[3]
[3]Defamation Act 2005 (Vic) ss 25, 26, 30, 31 (‘Act’).

The defences have been pleaded in the following way, using the first video as an example of the template adopted in respect of all videos. First, the defence of substantial truth follows this form.

If (which is denied) the First Video was defamatory of either of the Plaintiffs in any of the meanings alleged in paragraph 6 (or any permissible variant thereof), then in those meanings the First Video is substantially true and accordingly, the Defendants have a Defence both at common law and pursuant to section 25 of the Defamation Act 2005 (Vic) (Act) and the corresponding provisions of the uniform legislation.
PARTICULARS
The Defendants refer to Particulars of Truth, 1 to 72 contained in Schedule A to this Defence.

The plaintiffs allege, across the publications, about 70 imputations (some with sub‑parts) and the defendants plead a truth defence to approximately 60 imputations.

The defence of honest opinion follows this template:

[F]urther or alternatively, if (which is denied), the First Video was defamatory of either of the Plaintiffs in the meanings alleged in paragraph 6 (or any permissible variant thereof), then they say that:
(i)in those meanings the First Video was an expression of opinion of the First Defendant;

(ii) the opinion related to matters of public interest;
PARTICULARS
The Defendants refer to the Particulars of Public Interest contained in Schedule A.

(iii)the opinion was based on proper material, namely material that is substantially true and stated or referred to in the First Video;
PARTICULARS
The Defendants refer to and repeat Schedule A, Particulars of Truth 3 to 5, 8(b), 9, 21 to 25, 26(b) to 26(d), 26(f), 27, 28, 29, 32, 33, 34, 35, 37, 39 to 42, 46, 49 and 72.

(iv)the First Defendant is therefore entitled to the defence of honest opinion in section 31(1) of the Act.

The defendants plead the defence of honest opinion to all 11 imputations alleged to be carried by the first video, all 5 imputations carried by the second video, all but one of the imputations (15) carried by the third video, all 7 imputations carried by the fourth video, all 8 imputations carried by the fifth video, all 8 imputations carried by the sixth video, all 5 imputations carried by the seventh video, all 3 imputations carried by the eighth video, all 4 imputations carried by the ninth video, and all 4 imputations carried by the tenth video. In addition there are 20 imputations derived from third-party comments in respect of which an honest opinion defence is, or is to be, raised.

The pleading of the defence of qualified privilege has not been challenged.

The defence of contextual truth follows this template:

[F]urther or alternatively, if (which is denied) the First Video was defamatory of either of the Plaintiffs in any of the meanings alleged in paragraph 6 of the Claim (or any permissible variants thereof) (Carried Imputations), then the Defendants say:
(i)the First Video carried the following additional imputations (Contextual Imputations):
A.The First Plaintiff makes dangerous and inaccurate medical claims in order to promote herself and her Products and, in doing so, endangers the lives of vulnerable Filipinos;

PARTICULARS
The Defendants refer to and repeat Particulars of Truth 3 to 20, 21 to 28, 34 to 40A, 55 to 63, 65, 65A, 72, 89A, 90 to 96, 124 and 128 to 129.

B.The First Plaintiff falsely passed herself off as a Harvard-trained medical doctor;

PARTICULARS
The Defendants refer to and repeat Particulars of Truth 29 to 33.

C.The First Plaintiff falsely portrays that she and her Products (as defined in Schedule A) can cure cancer and other serious illnesses;

PARTICULARS
The Defendants refer to and repeat Particulars of Truth 3 to 20, 21 to 28, 34 to 40A, 55 to 63, 65A and 72.

D. The First Plaintiff is a fraud.
PARTICULARS
The Defendants refer to and repeat Particulars of Truth 1.

(ii) The Contextual Imputations are substantially true;
(iii)By reason of the substantial truth of so many of the Contextual Imputations which are conveyed by the First Video, publication of the Carried Imputations do not further harm the reputations of the Plaintiffs;
(iv)Accordingly, the Defendants are entitled to the defence of contextual truth in section 26 of the Act.

The defendants allege 42 contextual imputations arising from the 10 videos that they allege are substantially true.

Relevant Principles

I addressed the relevant general principles on an application to strike out a pleading pursuant to r 23.02 of the Rules that I will apply in this application, in Wheelahan v City of Casey (No 12).[4] The defendants submitted, and I accept, that pleadings are not an end in themselves but are a means of ensuring that real issues of controversy are raised for determination in a way that is procedurally fair. Absent extraordinary circumstances, leave to amend will usually be granted.[5]
[4][2013] VSC 316, [25].
[5]See generally Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

I note some principles relevant to the pleading of the defences taken in this proceeding.

Truth

Both at common law and under s 25 of the Defamation Act 2005 (Vic) (‘Act’), the defendant must prove not only the truth of the words complained of in their literal meaning, but also the truth of the defamatory sting or stings, the classic phrase used in the cases being ‘true in substance and in fact’. The sting(s) of the defamation are identified by reference to the context of the publication as a whole.[6] Every material part of the defamatory imputation must be true, otherwise the defence of justification fails.[7]
[6]Charan v Nationwide News Pty Ltd [2019] VSCA 36, [114], [119], [123], [125] (‘Charan’). See also Soultanov v Age Ltd (2009) 23 VR 182 (‘Soultanov’).
[7]Howden v Truth and Sportsman Ltd (1937) 58 CLR 416, 420; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 57 [274], 63 [306] (‘Popovic’); Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, 263-4 [138]; Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157, 169 [46], 172-3 [59].

The truth defence requires that the defamatory imputations be shown to be substantially true or not materially different from the truth.[8] Further, in Popovic, Gillard J carefully noted that the general rule is that the publisher must prove every injurious imputation which the jury may find in the words complained of. The plaintiff can succeed not only on the pleaded meaning but upon a permissible variant, and a plea of justification to the pleaded meaning necessarily extends to any permissible variant of that meaning.[9]
[8]The Act ss 4, 25; Setka v Abbott (2014) 44 VR 352, 380 [107] (‘Setka’).
[9]Charan [2019] VSCA 36, [94], [106].

In this case, where there are many defamatory imputations, the defendants may justify only part of the material complained of. A defence of partial justification requires that the particular defamatory imputation is severable from the other defamatory imputations and conveys a distinct and separate imputation. For pleading purposes, the rule is that the plaintiff must not be left in any doubt as to what part the defendant seeks to justify.

For the reasons explained in Lord Ashcroft v Foley,[10] a loose and ineffective pleading with excessive and irrelevant particulars, is not to be permitted. Particulars of a defence of justification, generally must, first, be shown to be capable of proving the truth of the defamatory meaning sought to be justified and, second, be sufficiently specific and precise to enable a claimant to know the case they are required to meet.[11]
[10][2012] EWCA Civ 423, [49]–[50].
[11]Khan v Fairfax Media Publications Pty Ltd (No 3) [2015] WASC 400, [21]; Rush v Nationwide News Pty Ltd (2018) 359 ALR 473, 481 [46] (‘Rush’).

That said, caution is needed because the court may be called on to engage in factual evaluation on the basis of the pleading before evidence is led at trial.[12] The pleading provides no more than a bare outline of the facts that the plaintiff will seek to prove; sometimes described as topics on which evidence may be led. The pleading does not identify the outer limits of what may be proved at trial.[13] When assessing the sufficiency of the precision of particulars, a court should have regard to the cumulative effect of the particulars.[14] Further, a defendant must specify the particulars of truth relied on with the same precision as in an indictment.[15] Specificity and precision are not assessed by reference to the quantity of information provided, but by reference to whether the plaintiff is properly on notice of how the defendant alleges that an imputation is substantially true and enabled fairly to respond to it.
[12]Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376, [20].
[13]Ibid.
[14]Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475, [54]; Pahuja v TCN Channel Nine Pty Ltd (No 2) [2016] NSWSC 1074, [11].
[15]Hickinbotham v Leach (1842) 152 ER 510, 510; Zierenberg v Labouchere [1893] 2 QB 183, 186–7; Wootton v Sievier [1913] 3 KB 499, 503; Crosby v Kelly [2013] FCA 1343, [33]; Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331, [9]–[12]; Rush (2018) 359 ALR 473, 483 [52]-[54].

The process of particularising meanings in defamation proceedings was summarised in Setka v Abbott (‘Setka’).[16] A substantial truth defence can be particularised to meet a permissible variant of the meaning pleaded by the plaintiff, but, as a matter of ‘practical justice’ the pleading must identify generally the permissible variant alleged to be substantially true. A meaning is capable of being considered a permissible variant if it would be open to the jury at trial to consider that the imputation was no more injurious and not substantially different to that pleaded.[17] Care is needed in identifying the precise or specific meaning of a permissible variant in the context of the plaintiff’s allegations and the publications generally. There is a danger that false issues will be raised where a defendant makes wide allegations, en bloc, of matters it proposes to prove are true in order to meet possible permissible variants that have not been identified in terms.
[16]Setka (2014) 44 VR 352, 367–71 [46]–[64].
[17]Newnham v Davis (No 2) [2010] VSC 94, [26].

Honest opinion

The defence of honest opinion under s 31 of the Act is substantially similar to the defence of fair comment at common law,[18] and the relevant principles that apply to make out those defences are well established.
[18]Herald & Weekly Times Pty Ltd v Buckley (2009) 21 VR 661, 680–1 [83]–[84]; JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) (2020) 377 ALR 467, 555 [471]; Stead v Fairfax Media Publications Pty Ltd (2021) 387 ALR 123, 151 [124].

In Channel Seven Adelaide Pty Ltd v Manock, Chief Justice Gleeson stated:

It is more accurate, therefore, to describe as conventional a case where the facts upon which the comment is based are stated in the terms of the communication, or are sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to identify it as comment on those facts and to assess for themselves whether the facts support the comment. If the purported facts upon which the comment is based are not true, the defence does not lie. Hence, Bingham LJ’s summation that ‘comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated’.[19]

[19](2007) 232 CLR 245, 253 (citation omitted), 268-84 (‘Manock’). As to the elements of the common law defence of fair comment, see Cripps v Vakras [2014] VSC 279, [344]-[354].

In relation to the defence under s 31 of the Act, in Herald & Weekly Times Pty Ltd v Buckley, the Court of Appeal rejected the proposition that the statutory defence of honest opinion requires only that the opinion is honestly based on proper material that need not be known to the reader.[20] The Court of Appeal said:

[W]e do not consider that there is any difference between the common law and the statute as to the need for facts on which a comment or opinion is based to appear in the publication or otherwise be apparent to the reader. The idea of expanding the defence of comment or opinion to cases where the facts are unspecified and unknown was rejected by the Law Reform Commission (on whose report the legislation is largely based), and there is nothing in the proposal for uniform defamation laws released by the States and Territories in July 2004 or in the proposed Bill which they released in November 2004, or in the explanatory memorandum or second reading speech which suggests any difference in that respect. To the contrary, all the indications are that the two were meant to be the same.[21]

[20](2009) 21 VR 661.

[21]Ibid 680-1 [84]. See also Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695, 704 [41]-[42].

Section 31 requires proof of three matters concerning the impugned defamatory matter:

(a) the matter was an expression of opinion rather than a statement of fact;

(b) the opinion related to a matter of public interest; and

(c) the opinion was based on proper material.

Section 31(5) provides that an opinion will be based on proper material if it is based on material which satisfies at least one of three alternatives: the material is substantially true; was published on an occasion of absolute or qualified privilege; or was published on an occasion that attracted the protection of a defence under this section or ss 28 or 29 of the Act. This enables the reader considering the defamatory material to judge for themselves that it is a comment and to what extent the opinion expressed in the comment is well founded.[22]

[22]Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309, 327; Manock (2007) 232 CLR 245, 253 [5], 262-3 [35], 268-9 [45], 270-1 [47], 283-4 [72].

The pleading of the defence must address these elements, while meeting the general principles of pleading. The pleading must identify how the defendant alleges that the defamatory sense of the matter complained of was conveyed as an expression of opinion rather than an assertion of fact, how it will be alleged that the ordinary reasonable reader/viewer would have understood the statement to be an expression of opinion. Next, the pleading must identify how it will be alleged that the opinion related to a matter of public interest. In particular, the basis to allege that the defamatory matter is based on proper material requires the identification of the source and content of the facts and matters constituting the proper material, so as to make clear the allegation that the matter is comment and to identify the scope of the contest about the requirements of s 31(5). That is, whether, and if so, how, the basal material is identified by the ordinary viewer of the publication or is otherwise notorious.

McCallum J observed that the material on which the opinion is based is determined by reference to what the ordinary reasonable reader would have understood from the impugned matter to have been intended by the author to be considered as the basis for his or her comment.[23] This is helpful for the pleader in identifying the material facts that must be pleaded and particularised. In some circumstances, how the opinion has its foundation in the ‘proper material’ may be clear, while in other circumstances the pleader may need to specify some rational connection between the proper material and the opinion, identifying how an honest reader, however biased or prejudiced, might reasonably draw an inference or conclusion from the facts so stated or known.[24] The reference to the proper material may not need to be more specific than an allusion, provided the facts have been presented to the minds of the readers to enable them to assess the opinion for themselves.[25]
[23]O’Neill v Fairfax Media Publications Pty Ltd [2017] NSWSC 631, [106]; Feldman v Polaris Media Pty Ltd [2018] NSWSC 1035, [47], citing Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 30, 492A.
[24]The recent analysis of the defence of honest opinion at trial by White J in Dutton v Bazzi [2021] FCA 1474 (‘Dutton’) can provide invaluable assistance to a pleader. The relevant portions were left undisturbed by the appeal judgment Bazzi v Dutton [2022] FCAFC 84.
[25]Dutton [2021] FCA 1474, [126].

As with truth, a defendant advancing an honest opinion defence must grapple with the relationship between the meaning pleaded by the plaintiff and the prospect of a finding of a permissible variant by the court. Relevantly, in Manock, the defendant sought to sidestep the imputation pleaded by the plaintiff, by directing the plea of fair comment, not to the meaning of the words, but to the ‘raw material’ constituted by the word spoken, a proposition rejected by the High Court. Gummow, Hayne and Heydon JJ noted that the plaintiff had only pleaded one meaning, but that meaning or a permissible variant, might be proved by the plaintiff. Only then would the defence of fair comment be considered, directed to the meaning found by the court. Their Honours stated:

The matter sued on—twenty-eight words spoken while a picture of the plaintiff was displayed on the screen—would have been found to have had the meaning alleged, and the only question would be whether those twenty-eight words, bearing that meaning, constituted fair comment. Hence the defendant’s contentions that in this case the meaning pleaded by the plaintiff is irrelevant to the defence of fair comment at common law is wrong. It is wrong because by the time the trial judge comes to consider the fair comment defence the question of meaning will have been decided adversely to the defendant. The meaning found is the comment to be scrutinised for its fairness.[26]

[26]Manock (2007) 232 CLR 245, 287-8 [83].

The vice was that it may lead to injustice to permit the defendant to raise a false issue to escape liability by pleading fair comment. As Kaye J explained in Soultanov—

The principal purpose served by tying the plaintiff to imputations, not substantially different from those pleaded, is to ensure fairness to the defendant. The same test has been held to apply to the defendant, principally in order to ensure that the defence does not create a ‘false issue’, by raising matters which do not meet the case to be put by the plaintiff to the jury, or to be considered by the jury. The various formulae developed by the courts — that the meaning relied on must be a nuance of, a variant of, or not substantially different from, the pleaded imputation—have been developed to serve those two fundamental purposes.[27]

[27]Soultanov (2009) 23 VR 182, 198 [42].

If the defendant contended that the real sting of the imputation is a meaning that is not ‘substantially different’ in the context of the publication from which they are derived, and that such meaning is fair comment, the issue raised by the defendant will be closely connected with the issue pleaded by the plaintiff and no false issue will be set up. That said, the same justification for requiring the pleader to identify the permissible variant alleged to be fair comment, as is set out above in respect of a truth defence, is apposite.[28]
[28]Ibid 198-9 [45]-[46].

Contextual truth

The contextual truth defence under s 26 of the Act and the common law principles discussed in David Syme & Co Ltd v Hore-Lacy (‘Hore-Lacy’)[29] are closely related defences. If the defendant proves that:
[29](2000) 1 VR 667 (‘Hore-Lacy’).

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true and upon which the plaintiff could succeed at trial, notwithstanding that the plaintiff had not in fact pleaded them; and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations,

the plaintiff will fail. The need for particular forms of pleading flows from the special position in defamation actions whereby the plaintiff may go outside his pleaded case and yet succeed.[30]

[30]Setka (2014) 44 VR 352, 367 [47]-[48], 370 [62].

The distinction between Hore-Lacy justification and s 26 should be noted as it is important for the purposes of pleading. In Setka,[31] Warren CJ and Ashley JA explained that Hore-Lacy justification takes as a starting point denial of the plaintiff’s meaning. Other meanings are asserted, said to be substantially true, and if the defendant succeeds the only available meanings have been justified.[32] On the other hand, a contextual truth defence starts with a finding by the trier of fact that one or more of the plaintiff’s pleaded imputations has been established. The defendant pleads additional meanings that are alleged to be substantially true such as not to further harm the plaintiff. Where a plaintiff particularises the same meanings for each defence, the defences of contextual truth and Hore-Lacy justification will be true alternatives.[33]
[31]Ibid 361 [13].
[32]Charan [2019] VSCA 36, [106].
[33]Ibid.

When pleading either form of the defence, the additional/alternative imputation(s) said to be defamatory of the plaintiff must be specified with an appropriate degree of clarity and specificity. This is not an exercise in close semantic or linguistic refinement, but it is an exercise in which the context in which the imputation is pleaded is important. As Gleeson CJ explained in Drummoyne Municipal Council v Australian Broadcasting Corporation, dealing with allegations of ‘corrupt’ conduct or acts of the council:

The requirement that a plaintiff must ‘specify’ the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology … Furthermore, whilst the principles relevant to the plaintiff’s obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says “X is disgusting”, the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter.[34]

[34](1990) 21 NSWLR 135, 137.

Because Hore-Lacy (and s 26) permit a defendant to plead a defamatory meaning that, viewed from the plaintiff’s stand point and although not pleaded by the plaintiff, could be a permissible variant of the pleaded meaning and to then seek to justify it,[35] Charles JA said in that case:

The plaintiff, faced with such a pleading, is, I think, entitled to know clearly what the defendants are intending to justify, and the failure to provide such particulars might well cause the plaintiff serious disadvantage at the trial, with the potential for the trial to be disrupted and the proceedings lengthened or delayed. I agree with Ormiston JA therefore, for the reasons he gives, that a defendant which pleads that it proposes to justify meanings by way of false innuendo other than those alleged by the plaintiff, should plead those meanings and that it should plead justification in terms which make clear the version of meaning of the publication to which that justification is directed. In my view the defendant is obliged to do so, in order to comply with RSC rr 13.07(1) and 13.10.[36]

[35]Setka (2014) 44 VR 352, 368 [56].

[36]Hore-Lacy (2000) 1 VR 667, 688 [59] (citations omitted).

When the plaintiff may go outside their pleaded case and yet succeed, it is necessary that pleadings be carefully structured. It is necessary to avoid the prospect of a defendant raising a false issue. In some cases, it will be preferable to separate the particulars of justification so that one can see clearly what facts are relied upon in support of each imputation. The present task is to ensure that the pleadings, particularly the defence in this case, properly sets up the framework for the trial, identifying what could be opened, what could be admissible evidence, how the judge should charge in a jury trial, and what issues the judge must consider in a trial by judge alone.

Plaintiffs’ general submissions

Truth defence

The plaintiffs submitted that the flaws in the pleading of the truth defence were illustrated in seven different issues that repeated through the pleading and its Schedule A, headed ‘Particulars of Truth’.

First, the plaintiffs pleaded imputations with specific qualifications. The defendants’ particulars of truth needed to be confined to matters relevant to the precise imputations and they were not. The plaintiffs pleaded many general imputations that were qualified to a precise imputation, usually including the words ‘in that’. An example illustrated the submission.

The imputation pleaded in paragraph 6(d) was:

Dr Farrah advocates treatment for people that create the risk of death in that she dangerously and falsely recommends that they take siling labuyo (chilli pepper) in case of a heart attack, rather than seeking urgent medical attention.

A specific sting of this imputation – the first plaintiff’s conduct, specifically her dangerous and false recommendations, created a risk of death – is precisely identified to be recommending a person who has had a heart attack take chilli pepper rather than seek urgent medical attention. Yet, most of the particulars of truth relied on as particulars of the truth of this imputation have nothing to do with chilli pepper. Particulars 26(a)-(g), for example, relate to asparagus, garlic, maria weed and Boston C. These particulars are not relevant.

The flaws demonstrable in this truth defence are evident in the pleading of truth defences to 27 other imputations.[37]
[37]Paras 6(a), 6(c), 6(e), 6(f), 6(g), 6(k), 22(c), 22(d), 22(e), 22(i), 22(k), 30(e), 30(f), 38(a), 38(b), 38(c), 38(d), 38(e), 38(f), 38(g), 38(h), 46(e), 46(h), 54(b), 82(b), 82(c), 82(d).

(a) the pleading is neither specific nor precise, because large swathes of the defendants’ particulars of truth bear no relevance to the imputation that they allegedly justify;

(b) in many instances, the particulars, if proved at trial, are incapable of justifying the literal meaning or defamatory sting of the imputations to which they respond. They are not capable of proving the substantial truth of the imputation;

(c) Many of the particulars of truth lack the specificity or precision to enable the plaintiffs to know the case that they have to meet;

(d) Many of the particulars of truth are vague, conclusionary and embarrassing.

The plaintiffs also identified the first imputation alleged to be conveyed by the first video as an example of these flaws.

Dr Farrah is a fraud in that she falsely passes herself off as a real doctor.

The defence of truth is pleaded in the terms set out above at [9], which reference the schedule that is the particulars of truth. The particulars of truth in respect of this imputation state –

1. Dr Farrah is a fraud in that:
(a)she falsely passes herself off as a Harvard University trained medical doctor. The Defendants refer to Particulars of Truth 29 – 33 below;

(b) she falsely represents that her Product Boston C:
(i)is a very potent cancer fighter which kills off more than half the population of cancer cells within 3-5 days even in its most diluted form;

(ii) causes tumorous masses to disappear within weeks;
(iii)has helped countless patients find a life without cancer which is something they couldn’t find anywhere else;
(iv)produces miraculous results as attested to by reports of a preeminent Filipino Physician and Surgeon at one of the most prestigious hospitals in the Philippines;
(v)is described by many doctors from all over the world as a ‘panacea’ for the treatment of cancer;

(vi) results in ‘complete body purification’;
(vii) is ‘the ultimate cure for cancer’;
(viii)has therapeutic benefits for pregnant women and their unborn children; and
(ix)is more effective than conventional cancer treatments such as chemotherapy and radiation.

Representations (i) to (vii) and (ix) were made on a website owned and controlled by the Plaintiffs at between at least 28 December 2016 and 30 September 2019. The website has been repeatedly promoted by Dr Farrah on her Facebook, Instagram and YouTube pages. The content of the website is described in further detail at Particular of Truth 8(e) below.
Representation (viii) was published on Dr Farrahs’ Personal Facebook Page at 3557552/search /?q= Obstetrician (15 February 2021) as set out in Particular of Truth 90 below.

(c) she falsely represents that she:
(i)is “the world’s most experienced medical doctor” (detailed at particular 8(c) below)
(ii)had a 96% success rate in treating cancer regardless of the stage of the cancer (detailed at particular 8(f) below)
(iii)is ‘a world leader in effective cancer treatment’ (detailed at particular 8(a) below)
(iv)operated a cancer clinic in Tarlac, Philippines which had the highest documented success rate of any cancer clinic of any kind
(v)has ‘the most successful and efficient methods of treating cancer anywhere in the world’
(vi)has a method for treating cancer which works ‘by systemic elimination of toxins, thereby eradicating the cause and the effect of the cancer’
(vii)has treatments for cancer described by many doctors from all over the world as a ‘panacea’
(viii)is more effective than modern cancer treatments such as chemotherapy and radiation and that there is a ‘significant lack of studies showing survival benefit of chemo and radiation.’

Representations (iv) to (viii) were made on the website owned and controlled by the Plaintiffs at between at least 28 December 2016 and 30 September 2019.
(d)she falsely represents that her treatments and her Products are highly effective in treating cancer and a wide variety of chronic illnesses, while making millions of dollars from the sale of her Products. The Defendants refer to Particulars of Truth 3 to 20, 21 to 28, 34 to 40A, 55 to 63, 89A below;
(e)she posts photoshopped images of Dwayne ‘The Rock’ Johnson wearing a ‘I love DR. F’ T-shirt falsely representing that Dwayne Johnson endorses Dr Farrah and her Products. The Defendants refer to and repeat Particulars of Truth 107(b) below.

2.While falsely holding herself out as a Harvard trained Medical Doctor, the First Plaintiff provides advice and makes recommendations not as a medical doctor but as a naturopath. The Defendants refer to Particulars of Truth 3 to 20, 21 to 28, 34 to 42, 55 to 63, 90 to 96, and 128 to 129 below.

The plaintiffs submitted that the sting of the imputation is quite specific. The plaintiff is a fraud in the particular nominated respect, which is that she passes herself off as a real doctor when she is not that. The cross-referencing in these two paragraphs refers to at least 50 other paragraphs of the schedule, and on some occasions, there are multiple references to the same paragraph. In this sense, the pleading is embarrassing. Further, many allegations were not relevant to establishing the truth of the imputation, for example sub-paragraph (b) particularises false representations alleged to be made about a product, ‘Boston C’. It must follow that false issues are raised as even if these paragraphs of the particulars of truth were proved at trial, the truth of the imputation would not be established. The particulars do not identify what is meant by ‘a real doctor’. That the first plaintiff had medical qualifications and is entitled to be registered to practice medicine appears not to be in issue.

Secondly, the defendants have not properly pleaded the elements of fraud to support a truth defence for seven of the imputations, being imputations 6(a), 14(b), 14(d), 22(d), 38(a), 54(c) and 54(d) (and the contextual imputations pleaded by the defendants). The first imputation, paragraph 6(a), was used to illustrate the submission. Again, the general sting ‘Dr Farrah is a fraud’ is given specific content by the allegation of falsely passing off as a real doctor.

Thirdly, there is a related issue that the particulars of truth do not identify with precision and clarity the defendants’ case that the plaintiffs’ conduct ‘falsely’ imputed or recommended some matter identified in a particular representation. For example, in the particulars of truth at paragraph 19, the defendants allege:

The Product Reviews … falsely impute that Dr Farrah and her Products were the cause of the cancer recoveries, and do not contain any recommendation that cancer sufferers should consider conventional medical treatment.

Fourthly, the particulars of truth are, the plaintiffs submitted, vague, conclusionary or embarrassing through pleading conclusions. The plaintiffs identified paragraphs 2, 21A, 28A, 40A, 43A, 63B, 65B, 72, 97A, 110C and 129A of the particulars of truth as examples of this flaw. Paragraph 2 was noted as an example of the pleading language used.

While falsely holding herself out as a Harvard trained Medical Doctor, the First Plaintiff provides advice and makes recommendations not as a medical doctor but as a naturopath. The Defendants refer to Particulars of Truth 3 to 20, 21 to 28, 34 to 42, 55 to 63, 90 to 96, and 128 to 129 below.

Another example was paragraph 63B.
Patients treated by the First Plaintiff at the Centre with Boston C suffered harm in that it can be inferred that many of them would have had more successful outcomes with conventional medical treatment.

Fifthly, the defendants overstated the medical impact of what Dr Farrah said. The plaintiffs identified four examples that appear to justify an imputation made in other publications that make dangerous, false, or inaccurate claims about products leading to an extreme consequence.

(a) Dr Farrah stated ‘Magnesium can help’; in imputations 6(f) and (g) and in particulars of truth paragraphs 37 and 38B, the defendants plead that this ‘creates the risk of death’. I presume I am asked to read those paragraphs with paragraph 40A.

(b) Dr Farrah stated ‘you might want to try white vinegar’; in imputation 22(i) and in particulars of truth paragraph 103 the defendants plead that this is ‘dangerous and false medical advice that causes death’ (presumably being read with the cross-referencing in paragraphs 103B and 103C).

(c) Dr Farrah stated ‘The best thing to do is to drink maria weed …. Herbs that can help you is maria weed’; in imputation 22(l) and in particulars of truth paragraph 110A the defendants plead that this is ‘dangerous and false medical advice that causes death’. Again, I note that paragraph 110A alleges that Dr Farrah gave that advice in a different publication, videos now removed from Dr Farrah’s Facebook Pages but still available on Dr Farrah’s Health Tips YouTube page. Paragraphs 110B and 110C (and the extensive cross-referencing that it employs) do not justify the statement ‘dangerous and false medical advice that causes death’ but rather raise an issue that the statement ‘some people who have eschewed conventional medicine in reliance of Dr Farrah’s dangerous and incorrect medical claims and advice and died would have survived if they received conventional medical treatment’ is true.

(d) Dr Farrah stated ‘Pixie Dust can help you with having strong memories’; in imputation 30(e) and in particulars of truth paragraph 118 which, I note, refers again not to the video in question but to another publication, the defendants allege that ‘Dr Farrah and DRF act illegally by making dangerous and false claims that Pixie Dust may help improve memory’. This appears to be referring not to paragraph 118 but to paragraphs 118A – 118C of the Particulars of Truth that cross-reference to Particulars of Truth 34 - 40A and 111 – 111H to justify a meaning carried by a publication other than the fourth video.

(e) The manner of particularisation of what the plaintiff submitted was an overstatement of the medical impact of therapies and products has a real propensity to generate false issues at trial.

Sixthly, extensive cross-referencing employed throughout the PFAD rendered the pleading embarrassing.

Seventhly, the plaintiffs submitted that the defendants had not properly pleaded the making of representations by the plaintiffs on the counterfeit website at
[38]Referencing imputations 6(l) and 22(f).

Honest opinion defence

The plaintiffs submitted that two main issues repeated through the pleading of this defence identify the defects in the pleading.

(a) Many particulars of truth relied on are not referred to or stated in the relevant videos.

(b) The particulars of truth and particulars of public interest are embarrassing as they contain confusing and circular cross-referencing and it is difficult for the plaintiffs to discern which particular of truth is being relied on for which imputation in each video and whether it is being relied on because it is being referred to or stated or is otherwise notorious.

Contextual truth

The plaintiffs submitted that the pleading of this defence was deficient in that:

(a) many of the alleged contextual imputations are not capable of being conveyed by the publication; or

(b) the defendants have pleaded contextual imputations at a high level of generality in a form that is bad because it is vague, lacking clarity and specificity.

Defendants’ general submissions

The defendants submitted that the plaintiffs have repleaded almost every imputation in a manner calculated to make it difficult for the defendants to prove the precise truth of the imputations pleaded. In doing so, the plaintiffs have strayed from the sting of the publications. In many cases, the specific details in the pleaded imputations do not appear in the videos themselves. The defendants submitted that this made it impossible for their truth particulars to meet the sting of the meanings conveyed by the publications and also to meet permissible variants of the pleaded imputations, having regard to the context of each publication as a whole.

The defendants addressed each representation specifically by recording their responses in an additional column of tables developed by the plaintiffs. The defendants stressed that the particulars were justified by the need to respond to permissible variants that the court might find were carried by the publications.

Analysis
Truth

I will start with the imputation pleaded in paragraph 6(a) of the statement of claim.

Dr Farrah is a fraud in that she falsely passes herself off as a real doctor.

I set out the particulars of truth applicable to this imputation earlier in these reasons.

The defendants contended that the particulars of truth are reasonably capable of establishing the substantial truth of the imputation or an (unidentified) permissible variant, taking into account the sting of the imputation in the context of the video as a whole. The sting of the imputation is that Dr Farrah is a fraud in that she passes herself, her products and her treatments off as things that they are not. Several examples are given in the video of Dr Farrah making representations about herself, her products and her treatments for serious medical conditions.

The defendants impermissibly expand the scope of the issue by referring to Dr Farrah’s products and her treatments. This is not, as the defendants appeared to contend, a more general meaning that can be a permissible variant of the pleaded imputation. If some more general meaning is the permissible variant that the defendants seek to justify, then they must identify the variant of the imputation as it relates to products and treatments in the defence. The pleadings will then permit a focused dispute as to whether those meanings are permissible variants or entirely different imputations (and, if so, whether the publication bears those imputations). Unless this focus is present, false issues may intrude.

The cross referencing is, as the plaintiffs characterise it, prolix and embarrassing and the particulars raise false issues in respect of this imputation. Most of the applicable particulars of truth have nothing to do with whether Dr Farrah is a doctor or not or whether she falsely represented herself to be a doctor. They relate to matters that may be relevant to proving the substantial truth of other pleaded imputations or of unidentified permissible variants of the meaning that the defence specifically responds to.

The plaintiffs submitted that, save for appealing to the notion of ‘passing off’ and the concept of a ‘real doctor’, the defendants did not particularise the notion of fraud, particularly the dishonest intention element, in the PFAD. It cannot be inferred that a doctor is a fraud simply because there is a disagreement between conventional medicine and natural medicine. The plaintiffs have no idea from the particulars how it is put that Dr Farrah intended to deceive, or intended to be, an imposter. Alleging it to be true that the plaintiff engaged in what can be criminal conduct such as committing a fraud, requires particular precision. The meaning requires that the ‘passing off’ element has a mental element; an intention. This must be identified so that the plaintiffs know the case they must meet. Is the plaintiff not a real doctor by reason of passing off qualifications she doesn’t have or is she not a real doctor because she passes off the advice she gives and the treatments she recommends as conduct of a ‘real’ doctor? Is her conduct intended to induce others to believe that she is something that she is not? From what was said in argument, I consider that the defendants can properly particularise an allegation of this sort, but in this respect the pleading is presently deficient.

Another example of the defendants impermissibly expanding the scope of the issue, and thereby creating false issues, is their response to the imputation pleaded in paragraph 6(d) of the statement of claim. The imputation reads:

Dr Farrah advocates treatment for people that create the risk of death in that she dangerously and falsely recommends that they take siling labuyo (chilli pepper) in case of a heart attack, rather than seeking urgent medical attention.

As the plaintiffs submitted, most of the references in the responding particulars of truth have nothing to do with chilli pepper. The exception is paragraphs 26(d) and 27. No permissible variant is identified in the defence. Yet the particulars of truth address asparagus as a treatment for lung cancer and any respiratory tract infection, garlic as an effective medication for a range of ailments including cancer, maria weed as effective for fibroids and polycistic ovary syndrome, Boston C for breast mass and Mega-Dose Vitamin C and Boston C for lymphoma.

The identified particulars of truth do not identify with clarity or precision how it is contended that Dr Farrah advocates that people take siling labuyo in case of a heart attack rather than urgent medical attention, or how her advocacy creates a risk of death.

Absent an alleged permissible variant raising cancer as the health concern rather than heart attack, the references to cancer in the particulars raise false issues. It may be relevant to state that there is no sound medically recognised basis for recommending the use of chilli to treat serious medical conditions such as heart attack when seeking to justify the pleaded imputation. However, the use of any of asparagus, garlic, or any of the herbal products to treat other illnesses like cancer, cannot justify the pleaded imputation. While the defendants do not identify in the PFAD the permissible variant sought to be justified, the defendants’ submissions disclosed their reasoning. Counsel submitted:

So, we say the sting here is not about chilli, the sting is about giving herbal treatments that are ineffective, it's about herbal treatments. And there's reference to chilli in the video, there's reference to garlic in the video, there's reference to pixie dust, there's reference to a range of herbal treatments which are ineffective and they're dealt with collectively, and in a way in the context of the video which is saying she is recommending, Dr Farrah is recommending, herbal treatments which are ineffective.

The defendants contended that they could include references to other herbal treatments and products in their particulars of truth because they were only meeting the substantial truth of the imputation and not responding to every little detail and saw no need to identify precisely the permissible variants. The defendants submitted that their pleading was justified by the observations of the Court of Appeal in Charan v Nationwide News Pty Ltd (‘Charan’),[39] notably the passage at [106] where the court said:

The concept of particularising meanings in defamation proceedings was summarised in Setka. The central notion of a Hore-Lacy defence is that it denies that an impugned publication conveyed the meaning or meanings particularised by the plaintiff. It does not seek to justify that meaning. It sets up a different meaning, which must be a permissible variant of the meaning pleaded by the plaintiff. It is that meaning, and none other, which the defendant seeks to justify. This is fundamentally different to the situation where, the defendant having denied that a publication conveys the meaning pleaded by the plaintiff, the defendant goes on to plead in the alternative that such meaning was substantially true. Because the plaintiff can succeed not only on the pleaded meaning but upon a permissible variant, it follows that a plea of justification to the pleaded meaning must necessarily extend to any permissible variant of that meaning. The availability of such a plea is a matter to which Beach JA adverted in argument.[40]

[39][2019] VSCA 36.

[40]Ibid, [106] (citations omitted)

However, I do not consider that Charan, which concerned issues about whether the trial judge erred in finding defamatory meanings variant from those pleaded by plaintiff to have been justified, to be inconsistent with the principles governing the pleading of justification defences prior to trial, derived from Hore-Lacy and Setka. Requiring the defendants to identify permissible variants that they seek to justify is different from requiring them to prove the truth of ‘every detail of the imputations’.

Ultimately, in argument, counsel conceded as much or denied the force of the proper approach to pleading justification and permissible variants.

HIS HONOUR:        Why can't you just say that? Why can't you say in 26, 'The first plaintiff made other statements like the chilli pepper statement concerning other herbal remedies such as asparagus to treat lung cancer or respiratory tract infection, garlic', … set them all out and just say, 'In each case there is a permissible variant in that there was a recommendation of a herbal treatment rather than seeking urgent medical attention and it was this that created a risk of death'.
COUNSEL:Now, perhaps it could be set out more comprehensively or more particularly like that, Your Honour. What I say is - - -
HIS HONOUR:        Clearly to identify the permissible variants that you are speaking about and which you intend to justify.
COUNSEL:Well, Your Honour, what I say is to establish substantial truth, that adds an unnecessary - it's not part of that defence that I need to establish that. I don't need to establish a permissible variant. Like Mahommed, all I have to show - all the defendants have to show is that the imputation, in the context of the video, is substantially true. And in most cases, Your Honour - - -
HIS HONOUR:        But, you're saying it's a different imputation.
COUNSEL:No, I'm saying - no, I'm not, I'm saying - - -
HIS HONOUR:        You are, you are. You're moving away from chilli peppers and heart attack and you're extending it out to all kinds of herbal remedies and all kinds of illnesses. That's a different imputation.
COUNSEL:That's not how the defendants put the case. The defendants put the case of substantial truth that 'this' imputation is substantially true and it's not material that this example only concerns chilli. There are examples - what the video is saying in its context is that her herbal treatments do that and that - - -

The defendants cited Channel Seven Sydney Pty Ltd v Mahommed (‘Mahommed’),[41] in which the publisher established the substantial truth of the imputation that ‘Mahommed is a dishonest financial adviser and mortgage broker’ and the contextual truth of the imputation that ‘Mahommed charged Doreen Smith outrageous fees’. The publisher in that case contended that it was entitled to prove the substantial truth of only one part of the pleaded imputation, because that part carried the sting of the imputation in the context of the publication as a whole. In that way it was properly responding to the sting and did not need to go further. The defendants in this case contended that the implication for their defence from Mahommed was that they did not need to plead precisely what that ‘sting’ was but could instead refer to the context of the publication as a whole. This was a regularly repeated feature of the particulars of truth.
[41](2010) 278 ALR 232.

I am not persuaded by the defendants that McColl JA (with whom the other members of the court agreed), at the paragraphs to which counsel referred,[42] when considering the course of the trial in that proceeding, laid down any different principle to what I have set out above as derived from Setka, namely that a defendant ‘should be able to plead a defamatory meaning which, viewed from the plaintiff’s standpoint, and though not pleaded by the plaintiff, would be a permissible variant of the pleaded meaning. Having identified that meaning, the defendant could then seek to justify it.’[43] In terms of procedural fairness through pleadings, identifying the meaning is a critical first step. Appealing to the context of the whole publication for the ‘sting’ of the particular meaning alleged, as the publisher did in Mahommed, does not obviate the need to identify the permissible variant, if the defendants contend that the ‘sting’ of the meaning they are justifying is different to the plaintiffs’ pleaded meaning.
[42](2010) 278 ALR 232, 263-5 [138]-[146].
[43]Setka (2014) 44 VR 352, 368 [52], [56].

These two examples serve to identify my reasoning for refusing to grant leave for the defendants to file and serve their defence in so far as it pleads a truth defence. The parties’ schedule recorded their detailed allegations and responses and it showed that the same reasoning applies to many allegations of the truth defence throughout the pleading; the plaintiffs’ counsel asserted that to be so in respect of some 27 or 28 imputations. I am persuaded that the defendants’ pleading does not comply with the rules of pleading truth defences. So much is clear from the following extract from the defendants’ submissions in respect of imputation 6(d).

It is not necessary for all the PoTs to specifically concern chilli to meet the substantial truth of the imputation or a permissible variant of it. PoTs 26(a) (b) (c) (e) (f) and (g), 27, 28 and 28A set out how Dr F advocates treatments for people that create the risk of death by recommending asparagus, garlic, maria weed, and Dr F’s Products for other life threatening conditions instead of recommending medical treatment. They are capable of meeting the substantial truth of the imputation or a permissible variant of it. A more general meaning can be capable of being a permissible variant of the more specific meaning pleaded by the plaintiff in the context of the First Video.

The defendants submitted that a more general meaning is capable of being a permissible variant, but they did not identify in terms the meaning said to be that permissible variant. If the defendants’ particulars purport to respond to the plaintiffs’ imputation, but in fact respond to a variant that is ultimately impermissible, they raise false issues. The defendants must first plead a meaning that can be assessed as meeting the requirements of a permissible variant in order to ensure that evidence is not led at trial on false issues.

It is not the function of the court to assess each and every allegation to settle the pleading. The deficiencies in the pleading of the truth defence are sufficiently widespread to permit me to refuse leave to the defendants to file and serve the pleading in that form. I am not, however, persuaded that the defendants should be denied a further opportunity to properly plead the defence.

Honest opinion

A major difficulty with the pleading of this defence is that the particulars of truth are ‘repurposed’ to meet the necessary elements of the defence. The defendants cross reference back to the particulars of truth instead of setting out the particulars to establish honest opinion. Particulars of why an imputation is true may be relevant when demonstrating that an opinion is based on proper material, but this approach rarely meets the requirements of properly pleading this element of the defence in accordance with the principles set out above.

I accept the plaintiffs’ submission that many of the particulars of truth that are pleaded or referenced in the particulars as stated or referred to in the various videos are not found in the relevant publication. While it is not necessary that a truth defence be based on material stated or referred to in the publication or otherwise notorious, the position is different for an honest opinion defence. I also accept that many of the particulars of truth relied upon do not have a rational connection to, and cannot form the basis of, the honest opinion alleged.

The pleading of the defence is embarrassing in a number of respects. The particulars are affected by extensive and circular cross-referencing. The plaintiffs and the court are left to assess how particulars of the truth of an imputation relate to the particular comment defended as honest opinion, and how it will be contended at trial that the particular will be relied on as a basis in proper material. The defendants contended that the particulars were capable of supporting an honest opinion defence to the meaning pleaded or a permissible variant of it having regard to the context of the first video as a whole. The reference to the ‘context of the video as a whole’ fails to identify with sufficient precision either the permissible variant of the opinion that the defendants seek to defend or the basis for it. This failure is sufficiently widespread throughout the pleading of this defence to, of itself, justify the refusal of leave to file and serve the amended pleading.

Taking as an example the first imputation that ‘Dr Farrah is a fraud in that she falsely passes herself off as a real doctor’, the defendants pleaded that in the alleged meanings in respect of the first video, including this imputation, the meanings were an expression of opinion and were based on proper material, namely material that is substantially true and stated or referred to in the first video. The particulars incorporated paragraph references from the particulars of truth.

The Defendants refer to and repeat Schedule A, Particulars of Truth 3 to 5, 8(b), 9, 21 to 25, 26(b) to 26(d), 26(f), 27, 28, 29, 32, 33, 34, 35, 37, 39 to 42, 46, 49 and 72.

Many of these matters are not referred to in the first video. But, more significantly, the pleading does not identify any rational connection between the defendants’ opinion that Dr Farrah is in some sense a fraud because she passes herself off as a real doctor, and the facts or material referred to (in the video or otherwise notorious). I do not accept the defendants’ response that the facts relied upon by the defendants to support the honest opinion defences need only be capable of having a rational connection to a permissible variant of the imputation, when the defendants do not properly particularise the permissible variant. This assertion cannot be understood by the plaintiffs or tested by the court.

An example given in submissions demonstrated that the defendants could replead the defence to address this concern. An imputation carried by the first video (alleged in paragraph 6(l) of the statement of claim) is:

Dr Farrah and DRF make dangerous and outlandish therapeutic product claims on the bostoncherbs.com website that DRF product Boston C can cure cancer and other serious illnesses

Counsel suggested that a permissible variant of this meaning would be that Dr Farrah and DRF make dangerous and outlandish therapeutic product claims that DRF product Boston C can cure cancer and other serious illnesses. This removes the reference to the bostoncherbs.com website for the purposes of the honest opinion defence. In other places in the defendants’ table produced in response to the plaintiffs’ submissions (but not in the pleading), the defendants have identified the possible permissible variant, said to be honest opinion, namely that ‘Dr F made the false and outlandish claims on the bostonherbs.com website in circumstances where Dr F made such false and outlandish claims on other websites as particularised’. However, they still fail to provide any particulars of the variant or the defence. Instead, the defendants mostly invite the plaintiffs to ‘take into account the context of [number] video as a whole’.

The defendants also plead honest opinion in respect of third-party comments that were posted by viewers of the defendants’ videos. They contended that the comments represent the honest opinion of the author of them and must be based on the material in the video that they are posted to. The defendants accepted that the defence is not adequately pleaded, but justified this by asserting that the third-party comments relied upon, are not sufficiently identified by the plaintiffs. The plaintiffs responded that such matters were clarified at great length in a letter from the plaintiffs’ solicitors to the defendants’ solicitors dated 3 August 2021. By conduct, the defendants appear to have accepted that this is so and their concession about the inadequacy of the pleading of this aspect of the defence remains well made.

Contextual Truth

The plaintiffs argued that many of the defendants’ contextual imputations were not capable of being conveyed by the relevant video or were too general or vague. The primary example given by the plaintiffs, because it is pleaded in respect of each video, is, again, the defendant’s imputation ‘Dr Farrah is a fraud’. The defendants then cross reference to the particulars of truth.

One problem here is the defendants’ use of the term ‘a fraud’. That specific term is not used in any video. As the Court of Appeal observed in Setka:

[A] recurrent circumstance . . . was that the key word or words in an imputation upon which the plaintiff sued were not to be found in the impugned publication. The imputation was a construct.[44]
…
[This circumstance] has this significance. The fact that an imputation contained words which were not themselves to be found to be in the impugned publication made it impossible to fall within that class of case in which a specific quality, at a high level of generality, was conveyed by a publication and thus could be the subject of an imputation directed to that quality pleaded at a similar level of generality.[45]

To illustrate, the Court considered, among other cases, Watt v General Television Corporation,[46] where the defendant’s defence was that the imputation of the publication was that the plaintiff was ‘vulgar’, which was justified. Vulgarity is a specific quality but stated at a high level of generality. However, the word did not appear in the publication. The Court held that this was too imprecise and required further refinement, either within the imputation itself or else by provision of particulars. Otherwise, the word is too broad to enable the court and opposing party to perceive the sense in which the word was being used.[47]

[44](2014) 44 VR 352, 411 [254].

[45]Ibid 412 [261].

[46][1998] 3 VR 501.

[47]Ibid 505.

The like point arises with the imputation that Dr Farrah is a fraud. The plaintiffs qualify the word ‘fraud’ with the additional particular of the meaning ‘in that she falsely passes herself off as a real doctor’. However, the defendants, in their contextual defence, have pleaded the imputation without any qualification.

The plaintiffs submitted:

(a) that imputation is not capable of arising from any of the videos;

(b) in particularising an imputation at such a high level of generality, the particulars extend to matters in Dr Farrah’s life that go beyond what is fair and reasonable having regard to the content of the videos;

(c) The contextual imputations appear repetitious and disconnected from the content of each individual video;

(d) In many instances the contextual imputations appear to be an expression of the defendants’ subjective views rather than anything that is conveyed by the videos themselves.

The defendants responded that a fraud is defined in the Macquarie dictionary as ‘one who makes deceitful pretences, impostor’. This is the theme of the first video. It begins and ends with Dr Farrah’s dramatic comments, ‘If something bad happens to me, please remember that I fought for my fellow Filipinos to have choices in their health care.’ The fraud imputation refers to Dr Farrah’s exploitation of Filipinos by making deceitful pretences that Boston C, Mega Dose Vitamin C, Pixie Dust and her clinic can effectively treat or cure cancer and other serious illnesses including by the use of testimonials/‘product reviews’. It refers to Dr Farrah’s false pretence that she is a Harvard University-trained medical doctor (depicted just before 3:07). The thrust of the first video and the various examples given is that Dr Farrah is a fraud. The degree of generality is appropriate to the occasion.

The defendants added that Dr Farrah herself pleads a meaning (paragraph 6(a)) that Dr Farrah is a fraud, but at a higher level of specificity, which is artificial in the context of the first video as a whole. In the alternative, the particulars of truth relied on do not ‘travel well beyond the compass of the impugned publication’ and are capable of giving specificity to what might otherwise be an impermissibly vague contextual truth imputation.[48] This explanation is found in counsel’s submissions, not the pleading.
[48]Citing Setka (2014) 44 VR 352, 417 [295].

Turning specifically to the general imputation of ‘a fraud’, the plaintiffs contended that there is a distinction between disagreeing that natural medicine has any utility and characterising a naturopath as ‘a fraud’. Describing a person as ‘a fraud’ carries the imputation that the person is someone who makes deceitful pretences, an imposter, or someone who deceives people by saying that they are someone or something that they are not. The defendants contended that the deceit is clearly a theme of the first video. In that context, the particulars refer to Dr Farrah’s claim that she graduated from Harvard University Medical School which the defendants allege is false (particulars of truth, paragraphs 29-33). Pausing here, it is not the specific particular concentrating on the Harvard Medical School that is problematic. Rather it is the broader reference to the theme of the first video and the ‘deceitful pretences’ about products and therapies.

Secondly, the defendants alleged the meaning is conveyed by pretences about the utility of products sold by the plaintiffs as being effective to treat or cure cancer and other serious illnesses. However, the particulars themselves identify that the representation concerning Boston C is not made in the first video but were made on a website owned and controlled by the plaintiffs or, in the case of one particular representation, was published on Dr Farrah’s personal Facebook page. The particulars cross‑reference to particulars of truth paragraph 8(e). This particular of truth identified representations found on a website. There are further examples. However, it is, in my view, sufficiently clear from the particulars themselves that they are not particulars of how that contextual imputation is said to be conveyed by the first video. The particulars that are cross-referenced were designed to serve a different purpose, namely to provide particulars of the justification defence.

As the High Court stated in Trkulja v Google LLC,[49] the question of whether words or images complained of are capable of conveying a pleaded defamatory imputation is a question of law which permits of only one correct answer. It is, however, a question about which reasonable minds may sometimes differ, and, consequently, it is only ever with great caution that a defamation pleading should be disallowed on the basis that the publication is incapable of bearing a defamatory imputation. The test for whether a published matter is capable of being defamatory is what ordinary reasonable viewers of the videos would understand by the matter complained of.
[49](2018) 263 CLR 149, 159 [30], 160 [31].

The occasion for such caution has not yet arrived. In respect of contextual imputations, as with permissible variants, the pleaded meaning is not identified with sufficient certainty and specificity in the PFAD. What precisely is the meaning, other than the plaintiffs’ pleaded meanings, that the video might be capable of conveying to the ordinary reasonable viewer? Until such meanings are identified precisely, the court cannot determine whether the video is capable of conveying that meaning.

It is notable that the particulars do not identify (for example, by time stamp) specific observations made in the video that convey the contextual imputation being alleged. It may be that particularisation in that form can be done as such references are made in the defendants’ submissions. But, in this sense, the particulars do not meet the required standard. It is necessary, and appears possible, for the defendants to identify the precise passages of each video upon which they will rely to identify how the imputation that Dr Farrah is a fraud was conveyed. Once that is done, the proper content of the concept of ‘fraud’ being raised for the trial may become tolerably clear. That is all that the particulars need say on the first issue of whether the publication is capable of conveying the alleged meaning.

Having regard to the view that might be taken by an ordinary reasonable viewer of the expression ‘a fraud’, the particulars ought to identify Dr Farrah’s conduct alleged to constitute the deceitful pretence, which would appear to be representations that were made by Dr Farrah on occasions other than those that can be identified from the content of the video. Further, how it is said that those representations are false, or deceitful or constitute a misrepresentation designed to achieve personal gain? Looking at the particulars overall, it would seem that the defendant could more precisely and clearly identify the issues in respect of such matters in order that the plaintiffs are on proper notice of the case they must meet.

The particulars that identify how the defendants contend that the contextual imputation is conveyed must be specific to the publication. It may be that the particulars of how the defendants will prove that particular representations were false or were intended to result in financial or personal gain for the plaintiffs will have common application across multiple imputations.

I accept the plaintiffs’ submissions in respect of this imputation. The particulars are embarrassing.

Similar reasoning can be applied in relation to other contextual imputations arising out of the first video. With the exception of the contextual imputation pleaded in paragraph 7(d)(i)(B), the remaining contextual imputations said to arise from the first video are too vague and non‑specific, do not precisely identify how the imputation is conveyed by reference to the content of the video and fail to precisely define the issues to be raised at trial.

The defendants have pleaded 42 contextual imputations across 10 publications with particulars of their contextual truth defence identified by reference to the particulars of truth. The detailed submissions by each party in respect of each representation are set out in Table C of the aide memoir that was provided during argument. There is much repetition. I do not propose to further consider each of these imputations seriatim because what I have said in relation to the examples given is sufficient to demonstrate that leave should not be granted to the defendants to file and serve the PFAD in its present form.

As with the justification defence, the structure of the schedules, particularly the extensive cross-referencing, fails to distinctly and clearly identify the precise imputation, how it is conveyed by the publication, how it is said to be false and precisely how the defendants raise the issue of the intention of the plaintiffs.

Conclusion

This proceeding is particularly complex having regard to the number of imputations that are alleged and the structure of the schedules. The PFAD does not, in my view, clarify for the benefit either of the plaintiffs or the court how the issues for trial are defined and limited. That vagueness appears to be a consequence of how the schedule of particulars is structured. It is only by reference to the defendants’ submissions, as opposed to the defendants’ particulars, that it is possible to begin to identify particulars of how imputations are conveyed, particulars of how imputations are false, and particulars of how, by those imputations, Dr Farrah intended the alleged consequence and to possibly discern how the case might be put.

The complexity of the defence is exacerbated by the attempt to meet permissible variants of the pleaded meanings, which have not been identified in terms, with the defences of truth and honest opinion. It is not possible to say whether the videos are capable of conveying the variant meanings, let alone whether they are permissible.

In striking out parts of the current pleading, I emphasise that no complaint was made as to the elements of the defences as pleaded. Paragraphs that stand unparticularised after the particulars of the allegations made are struck out need to be properly particularised by a further amendment to avoid the paragraph itself being struck out on the basis that the allegations in the paragraph cannot stand without proper particulars.

The formal order that I will make is:

(a) The particulars to the following paragraphs of the Amended Defence dated 25 August 2021 be struck out: 7(a), 7(b), 7(d), 10, 15(a), 15(b), 15(d), 18, 23(a), 23(b), 23(d), 31(a), 31(b), 31(d), 34, 39(a), 39(b), 39(d), 42, 47(a), 47(b), 47(d), 50, 55(a), 55(b), 55(d), 58, 67(a), 67(b), 67(d), 70, 75(a), 75(b), 75(d), 78, 83(a), 83(b), 83(d), 86, 96(b), and Schedule A, 1- 154.

(b) Leave to the defendants to file the proposed further amended defence dated 28 March 2022 is refused.

(c) The defendants have leave to serve a second proposed further amended defence on the plaintiffs.

(d) The plaintiffs shall respond with either:

(i) their consent to the defendants filing a further amended defence in or substantially in the form proposed; or

(ii) a succinct outline of their contentions as to why leave to file the second proposed further amended defence ought to be refused.

(e) In the event that the plaintiffs respond under sub-paragraph (ii) of the preceding order, the defendants may seek leave to file the second proposed further amended defence on a return date to be nominated by my chambers and the plaintiffs shall not less than 14 days prior to that return date exchange with the plaintiffs a succinct outline of their contentions as to why leave ought to be granted.

I will hear counsel on the costs of the application.

Citations

Agustin-Bunch v Smith (No 2) [2022] VSC 290

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[2022] VSC 290

6 June 2022