Blaylock-Rayner v Seven Network (Operations) Limited [2023] FCA 1026
File number(s):
VID 525 of 2022
Judgment of:
ANDERSON J
Date of judgment:
29 August 2023
Catchwords:
PRACTICE AND PROCEDURE – application to strike out contextual imputations and particulars of defence – whether pleaded imputations are conveyed by matter complained of – whether pleaded imputations are otherwise bad in form – whether pleaded imputations are capable of being proven based on particulars – application dismissed
1.The applicant’s amended interlocutory application filed on 3 May 2023 is dismissed.
2.The applicant provide particulars of the reply filed on 8 December 2022 within 14 days.
3.The applicant pay the respondents’ costs of the interlocutory application filed on 3 May 2023, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANDERSON J
INTRODUCTION
The applicant is a professional paparazzi photographer, and the chief executive…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Blaylock-Rayner v Seven Network (Operations) Limited [2023] FCA 1026
Case
[2023] FCA 1026
Decision Date
CaseChat Overview and Summary
In the case of Blaylock-Rayner v Seven Network (Operations) Limited, the Federal Court was tasked with deciding an application to strike out contextual imputations and particulars of defence. The dispute arose from allegations of defamation against the applicant, Mr Blaylock-Rayner, by the respondent, Seven Network (Operations) Limited, in relation to a broadcast interview with Mr Markle. The court had to determine whether the pleaded imputations were conveyed by the matter complained of, whether they were bad in form, and whether they were capable of being proven based on the particulars provided.
The court held that the Interview conveyed the broad impression that the applicant was a dishonourable man. It found that the various references in the Interview, when taken together, would appear to convey, or at least were capable of conveying, the broad impression that the applicant was a dishonourable man. This was sufficient to satisfy the requirement for capacity determination, which is an exercise in generosity rather than parsimony. The court also found that the particulars of the reply were sufficient to provide the respondent with adequate particulars of the applicant’s case.
The court dismissed the applicant’s amended interlocutory application. It ordered the applicant to provide particulars of the reply within 14 days and to pay the respondents’ costs of the interlocutory application, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.
Orders
Orders of the court
1. The applicant’s amended interlocutory application filed on 3 May 2023 is dismissed.
2. The applicant provide particulars of the reply filed on 8 December 2022 within 14 days.
3. The applicant pay the respondents’ costs of the interlocutory application filed on 3 May 2023, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
For the reasons that follow, the applicant’s amended interlocutory application filed on 3 May 2023 will be dismissed. It is also not necessary for the Court to determine the permissibility of the respondents’ Burstein Plea for the reasons addressed below.EVIDENCE ON THE STRIKE OUT APPLICATION AND PLEADINGS On the hearing of the Strike Out Application, the applicant read into evidence the affidavit of Mr Peter Davey, a solicitor, sworn 2 May 2023 (Davey Affidavit). The respondents read into evidence the Munsie Affidavit. Those affidavits principally annexed correspondence concerning the state of the parties’ respective pleadings. The ASOC As has already been noted, in the ASOC, the applicant alleges that the Interview, which was broadcast on 15 September 2021, conveyed two defamatory imputations, namely imputation (a) and imputation (b). As is the usual course in proceedings of this nature, the ASOC annexes a transcript of the Interview. The Interview was conducted by Natalie Barr and David Koch. Mr Koch introduces the Interview as concerning Mr Markle’s “tumultuous” and “fractured” relationship with his daughter. In introduction, Mr Koch further states that, according to Mr Markle, “as the tabloids made a mockery of him, he was convinced to take staged paparazzi photos before his daughter’s wedding”, referring to photographs taken by the applicant of Mr Markle. In the course of the Interview, Ms Barr observes that it appeared that Mr Markle’s relationship with Ms Markle had started to “go awry” after those photos were taken, and asks Mr Markle about his relationship with Ms Markle. The subsequent exchange between Mr Markle and Ms Barr and Mr Koch is extracted in full below:[MR MARKLE] … [A]nd of course the photographs were a set up. I was, ah, set up by a guy named Jeff Rayner and um, um, another guy named Dylan Howard who is, ah, with American Media I think. And the whole thing was a plan to actually mess up the wedding, ah I was just part of it. Basically they went to my oldest daughter and convinced my oldest daughter to convince me to, to have photographs to clean up my image because the photographs before that were always making me look bad.So, um, I bought into it and went along. I regret it to this day because it was a total set up, ah, and, ah, Jeff knew – he knew it. Matter of fact he bragged about it on Facebook, ah, he bragged about it to everybody. Um, some day I'd like to, ah, ah, I mean I'm … attempting to sue him. If I, ah, if I fail in suing him I hope to see him someday with ah, with ah, Weinstein because he was also shooting, ah, shooting young women, ah, for Weinstein to, ah, ah - - -MR KOCH: Oh MR MARKLE: - - - make them look bad so they couldn’t sue him for rape. MR KOCH: Yeah. How does that make you feel? From what you’re saying you were conned by your eldest daughterMR MARKLE: Yeah ...MR KOCH: - - -In cahoots with this management company - - -MR MARKLE: No ...MR KOCH: to stage these photos that really destroyed your relationship, was the last straw for Meghan Markle.MR MARKLE: Let me, let me correct that, um, my daughter, my oldest daughter was conned into conning me. Um, and they, they, they - - -MS BARR: By the journalists.MR MARKLE: - - - went first to my oldest daughter and said that they would, they would make me look good and, ah, and I, I went along with it. Had I been a little younger and a little smarter it wouldn’t have happenedMS BARR: YeahMR MARKLE: - - - But, ah, I fell for it and ah, and I fell, I fell a long way for it. So, I do regret it to this day and, ah, I will, I am trying to sue the man and, ah, if I can't succeed in suing him, like I said, I’d be happy to see him … laying beside Weinstein.
Decision
Reasons for decision
An example of a case in which the particulars of a truth defence were struck out, and on which the applicant places some emphasis, is Wing v Australian Broadcasting Corporation [2018] FCA 1340 (Rares J) (Wing First Instance Decision). In that case, the applicant, Dr Wing, claimed that material published by the respondents imputed, amongst other things, that he had bribed, or been knowingly involved in a bribe of the President of the General Assembly of the United Nations. The relevant imputations were as follows: Imputation 5(f): The Applicant paid Sherri Yan, whom he knew to be a corrupt espionage agent of the Chinese government, in order to assist him in advancing the interests of the Chinese Communist Party in his dealings with the Australian government.Imputation 5(g): The Applicant paid a $200,000 bribe to the President of the United Nations, John Ashe.Imputation 5(h): The Applicant was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations. The respondents alleged that Imputations 5(f)-(h) were substantially true. In support of this defence, the respondents pleaded particulars of truth which broadly comprised:(1)allegations concerning the relationship between Sherri Yan and the applicant (paras 61-63);(2)allegations concerning Ms Yan’s alleged activities in Australia, including an allegation that a raid in October 2015 by the Australian Security Intelligence Organisation and the Australian Federal Police of Ms Yan and her husband’s property resulted in the retrieval of highly classified Australian intelligence documents (paras 64-68), (3)allegations contained in a criminal complaint filed in a United States District Court proceeding against Ms Yan and others, including allegations that: (a)Ms Yan and other co-conspirators paid a bribe to John Ashe, the Antiguan permanent representative to the United Nations and the President of the General Assembly, in exchange for him attending a conference in Guangzhou, China;(b)a co-conspirator of Ms Yan (identified only as CC-3) had organised the conference and made the payment to Mr Ashe (paras 70-72);(4)allegations that the applicant had organised the conference in Guangzhou, China at which Mr Ashe spoke (paras 73-74);(5)allegations that Ms Yan had subsequently pleaded guilty to certain of the allegations in the criminal complaint and made oral admissions in court broadly to the effect that she, along with others, had paid Mr Ashe in exchange for obtaining his support for their business (paras 75-76);(6)an allegation contained in a statement by Andrew Hastie MP in Parliament that he had been informed by a US intelligence agency that CC-3 was the applicant (para 79); (7)a conclusion that it may be inferred from the particulars that:(a)CC-3 is the applicant (para 80(a));(b)the applicant must have known that Ms Yan was corrupt (para 80(b));(c)the applicant knowingly participated in the payment of a bribe to Mr Ashe (para 80(c)); (d)the applicant did so in order to profit from Ashe’s activities on behalf of the co-conspirators in return for the bribe (para 80(d)).
Ratio Decidendi
Legal Principle Established
The Full Court in the Wing Appeal was reluctant to consider the metes and bounds of the applicability of the Burstein principle. The Full Court cautioned that, to do so, the Court would need to consider “how Burstein can be reconciled with other principles, including those applied by the House of Lords in Plato Films Ltd v Speidel”: at [84]. Nonetheless, as noted by Wigney J in Rush (No 2) at [46], it does not seem to be in doubt that the principle articulated in Burstein has been accepted in Australia: see, eg, Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547 at [179] (Gleeson JA, with whom McColl and Meagher JJA agreed); see also the recent articulation of the principle in Schiff at [22].CONSIDERATIONContextual Imputation (vi) – The applicant is a dishonourable man The applicant contends that Contextual Imputation (vi) should be struck out for three reasons. (1)Firstly, the applicant contends that the imputation is not capable of being conveyed by the Interview. The applicant’s contention is that the Interview does not discuss concepts of honour or dishonour, nor does it impute the general quality of dishonour to the applicant. (2)Secondly, the applicant contends that the imputation is impermissibly vague because the term “dishonourable” encompasses a melange of concepts which may imply more than one underlying act or condition.(3)Thirdly, the applicant contends that the imputation lacks sufficient specificity to relate it to the nature and content of the matters of which the applicant complains. I reject the applicant’s contentions. As to the applicant’s first contention, as previously stated, the Court will ordinarily only exercise its power to strike out a pleading in a plain and obvious case: Eggerth at [3]. Moreover, any capacity determination is an exercise in generosity and not parsimony: Faruqi at [16]. The Court must consider the “broad impression” conveyed by the matter complained of, and not “the meaning of each word under analysis”, bearing in mind that the ordinary person can “read between the lines”: Favell at [10]-[11], quoting Lewis at 258, 285. Having regard to these principles, I am satisfied that the Interview is at least capable of conveying a quality of dishonour to the applicant. There are various references in the Interview that, taken together, would appear to convey, or at least are capable of conveying, the broad impression that the applicant is a dishonourable man. Those references are:(1)Mr Markle’s statement that “the photographs were a set up”;(2)Mr Markle’s related statement that he was set up by the applicant, and that the applicant knew it;(3)Mr Markle’s statement that “the whole thing was a plan to actually mess up the wedding”;(4)Mr Markle’s statement that the applicant went to his eldest daughter and “conned [her] into conning [him]”;(5)Mr Markle’s statement that Mr Markle’s daughter was convinced to convince Mr Markle to taking the photographs “to clean up his image because the photographs before … were always making [him] look bad”; (6)Mr Markle’s statement that he was “attempting to sue [the applicant]”;(7)Mr Markle’s statement that the applicant had bragged about his conduct on Facebook “to everybody”;(8)Mr Markle’s statement that he would “hope to see [the applicant] someday with … Weinstein because he was also shooting ... young women … for Weinstein to … make them look bad so they couldn’t sue him for rape”;(9)Mr Markle’s statement that he “fell” for the applicant’s set up, that he regretted it, and that he thought that if he had been “a little younger and a little smarter it wouldn’t have happened”;(10)Mr Markle’s statement that he would be happy to see the applicant “laying beside Weinstein”; and(11)Mr Markle’s reference to suffering a heart attack because of the applicant.