Capilano Honey Ltd v Dowling (No 3)

[2019] NSWSC 539

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Capilano Honey Ltd v Dowling (No 3) [2019] NSWSC 539
Hearing dates:	3 May 2019
Date of orders:	03 May 2019
Decision date:	13 May 2019
Before:	Hoeben CJ at CL
Decision:	The orders which I make on the contempt motion are: (1)   Leave to file the contempt motion in these proceedings is refused. (2)   The defendant is to pay the costs of the respondents to the motion.  The orders which I make on the strike out motion are: (1)   The following paragraphs of the Defence filed 13 July 2018 are struck out: 1-12, 16, 17, 20, 21, 24, 25, 28, 29, 32, 33, 36, 37, 40, 41, 44, 45, 48, 49, 52, 53, 56, 57, 60, 61 and 62. (2)   The defendant is granted leave to file an Amended Defence within 28 days. (3)   At this time I decline to make any order for discovery and interrogatories. (4)   The defendant is to pay the plaintiffs’ costs of the motion to strike out the Defence.
Catchwords:	PRACTICE AND PROCEDURE – recusal application based on apprehended bias – leave sought to rely on motion raising contempt – leave refused – application to strike out Defence – whether a reasonable defence was disclosed – whether parts of Defence had a tendency to cause prejudice, embarrassment or delay in the proceedings – failure to comply with UCPR – parts of Defence struck out – leave granted to file an Amended Defence.
Legislation Cited:	Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) – 14.28, 14.31-14.40, 15.21-15.30
Cases Cited:	Capilano Honey Ltd v Dowling [2016] NSWSC 1441 Capilano Honey Ltd v Dowling (No 2) [2018] NSWSC 865 Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217 Doe 1 v Dowling [2018] NSWSC 1278 Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Munsie v Dowling (No 4) [2015] NSWSC 37 Sims v Wran [1984] 1 NSWLR 317
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Capilano Honey Ltd – First Plaintiff Ben McKee – Second Plaintiff Shane Dowling – Defendant
Representation:	Counsel: ATS Dawson SC – Plaintiffs Defendant in person PW Gray SC – Respondents to Notice of Motion   Solicitors: Addisons – Plaintiffs Defendant in person
File Number(s):	2016/299522

JUDGMENT

1. HIS HONOUR: These are proceedings for injurious falsehood and defamation commenced by Capilano Honey Ltd (Capilano Honey) and its Chief Executive Officer, Mr Ben McKee (Mr McKee), against Mr Shane Dowling (the defendant). The defendant is self-represented in the proceedings.

2. The defendant conducts a website entitled “Kangaroo Court of Australia” which he describes as a “judicial corruption website”. His publications also criticise others and have given rise to several proceedings in this Court brought by individuals or companies seeking to have material suppressed and damages.

3. This judgment deals with the following:

1. an application by the defendant for me to recuse myself from hearing this matter;

2. a Notice of Motion by the defendant seeking declarations and consequential orders that Capilano Honey, Ben McKee, Sandy Dawson SC, Richard Keegan, Martin O’Connor, Alexander Latu and Monique Cowden are in contempt of court (the contempt motion); and

3. a Notice of Motion by the plaintiffs to strike out the Defence filed by the defendant on 13 July 2018 (the strike out motion).

Circumstances in which these applications are brought

4. The proceedings were commenced by Summons, filed 7 October 2016. On that date, the plaintiffs made an ex parte application to his Honour Hall J as Duty Judge for interlocutory orders restraining the publication of certain material by the defendant on his website, Facebook page and Twitter account. The application related to two articles referred to in the proceedings as “the Toxic Honey article” and “the Car Conversation article”. The plaintiffs sought take down orders in respect of those articles and orders restraining future publication of that material and certain imputations and representations.

5. There are also related proceedings which were brought by the same plaintiffs against a Victorian beekeeper, Mr Simon Mulvany. That matter was transferred to the Victorian Supreme Court and appears to have been resolved by Mr Mulvany proffering undertakings to the court in lieu of the injunctions sought by the plaintiffs.

6. The two articles written by the defendant which were sought to be restrained in the present action concerned Capilano Honey’s proceedings against Mr Mulvany. The “Toxic Honey article” was published on 17 September 2016. The plaintiffs contend that the contents of that article must have been provided to the defendant by Mr Mulvany.

7. “The Car Conversation article” was published on 6 October 2016. That article includes reference to a recording of a conversation between Mr Mulvany and Mr McKee. The plaintiffs contend that the recording was illegally obtained and that it must have been provided to the defendant by Mr Mulvany.

8. It appears that the principal basis for the application before Hall J was the contention that the defendant and Mr Mulvany were working together to undermine the efficacy of the relief sought in the Mulvany proceedings. Implicit in the application before Hall J was that the restrained material was false.

9. Hall J granted the relief sought ex parte on 7 October 2016.

10. On the evening of Sunday, 9 October 2016, the defendant sent an email to the Court complaining about the “super injunction” granted by Hall J and stating that he could not appear at 3pm on 10 October 2016 because he would be at work. That day the defendant published an article reporting the orders made by Hall J under the heading “Capilano Takes Out Super Injunction to Silence a Second Journalist re Poisonous and Toxic Honey”.

11. The proceedings came before his Honour Davies J on 10 October 2016. The defendant did not appear. On that occasion the plaintiffs filed a Notice of Motion in court seeking a take down order in respect of the further article published on 9 October and restraining the defendant from publishing that article.

12. Davies J extended Order 1 made by Hall J (the interim suppression order). Davies J also granted the relief sought in the Notice of Motion. Davies J published his reasons for continuing Order 1 and making the orders sought in the Notice of Motion (Capilano Honey Ltd v Dowling [2016] NSWSC 1441).

13. Thereafter it was accepted by the plaintiffs that the matter should proceed by way of pleadings, rather than by Summons. A Statement of Claim was filed on 15 May 2017 and served on 17 May.

14. The matter came before her Honour McCallum J on 6 and 19 April 2018. Her Honour delivered judgment on 8 June 2018 (Capilano Honey Ltd v Dowling (No 2) [2018] NSWSC 865). That judgment sets out the factual background to the proceedings in considerably more detail than the above summary.

15. The issues before her Honour on that occasion were applications by the defendant for the proceedings to be dismissed for want of prosecution, for a review of the suppression orders and for the interlocutory injunctions to be discharged. The effect of her Honour’s judgment was to refuse to dismiss the proceedings for want of prosecution. Her Honour did, however, revoke the suppression order and discharge the interlocutory injunctions. Her Honour was not persuaded by the material placed before her that a continuation of those orders was warranted. In addition, her Honour was of the opinion that the issues raised in the injurious falsehood claim were part of a broad public debate concerning complex issues of trade and health safety regulations.

16. An appeal against her Honour’s judgment was dismissed (Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217). That was the status of the matter when the above applications came before the Court.

The recusal application

17. When this matter was reached on Friday 3 May 2019, the defendant objected to me hearing it. He did so on the basis of an email sent by him to the Court on 7 September 2016 in which he had referred to me and other Judges of the Court as “paedophiles”. This email was attached to an affidavit of the defendant, dated 2 March 2018. This was the first occasion that I was made aware of this email and of the fact that a report to similar effect had been placed on the “Kangaroo Court” website.

18. The defendant also relied upon a judgment of mine in Munsie v Dowling (No 4) [2015] NSWSC 37 (Munsie v Dowling) which was delivered on 11 February 2015. In that judgment I struck out the defendant’s Defence in that matter but gave him leave to file a Further Amended Defence within 21 days.

19. The principles to be applied in determining whether a judge should disqualify himself or herself from hearing a matter on the grounds of apprehended bias are stated in the decision of the High Court in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]-[8] where the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said:

“6   Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

…

8   The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.” (Footnotes omitted.)

20. In accordance with that statement of principle, I refused to recuse myself from hearing the two matters which were before me and which involved the defendant, i.e. the contempt motion and the strike out motion.

21. In addition, I had regard to the fact that these matters had been listed for hearing before me some six weeks previously and neither matter involved an issue of fact or the credit of the defendant. The issues raised were matters of law and involved interlocutory issues not a final hearing.

The contempt of court Notice of Motion

22. The contempt motion was filed by the defendant in these proceedings on 8 March 2019 without the leave of the Court. The motion sought declarations and orders against five persons in addition to the plaintiffs. One of those persons was the Senior Counsel appearing for the plaintiffs and another was his instructing solicitor. The other three persons named were lawyers employed by Addisons, the firm acting for the plaintiffs.

23. The orders sought in the contempt motion were:

“1   A declaration that the plaintiffs and respondents are in contempt of court for attempting to destroy evidence.

2   A declaration that the plaintiffs and respondents are in contempt of court for attempting to pervert the course of justice.

3   A declaration that the plaintiffs and respondents are in contempt of court for trying to interfere with a witness.

4   A declaration that Richard Keegan is in contempt of court for breaching the solicitors rules and making a knowingly false statement to the other party.

5   The court orders Capilano Honey to file and serve their evidence for their Injurious Falsehood claim within 5 working days as they have avoided doing it for over 2 ½ years.

6   That the plaintiffs and respondents pay my costs for this motion forthwith.

7   Such further or other order as the court thinks fit.”

24. Attached to the contempt motion was a document entitled “Statement of Charge”. That document stated:

“Charge

1   On the 7th of October 2016 the applicants instituted defamation and injurious falsehood proceedings against me and where [sic] granted wide ranging suppression orders and non-publication orders and a super-injunction by Justice Peter Hall based on the affidavits of Richard Keegan and submissions of Sandy Dawson.

2   On the 10th October 2016 Justice David Davies continued those orders.

3   On the 24/5/2017, in an almost identical matter against Simon Mulvany by the same applicants and legal team, the applicants and their lawyers tried to get Simon Mulvany to contractually agree, as part of the Dowling clause in a Deed of Release, to destroy a video / sex tape and to have nothing further to do with me in a deliberate attempt to pervert the course of justice and interfere with a witness. It was documentary maker working with Simon Mulvany’s who filmed the video. The content of the video / sex tape and evidence from Simon Mulvany are vital to my defence for the defamation and injurious falsehood claim against me.

4   The video / sex tape was and is vital evidence for my defence in relation to at least the defamation matter which the applicants and their lawyers were well aware.

5   Simon Mulvany and his evidence is also vital to my defence in both the defamation and injurious falsehood matters and the applicants and their lawyers were well aware of this.

6   The Dowling clause is part 6 of the draft Deed of Release between Capilano Honey, Ben McKee and Simon Mulvany which they never agreed as Simon Mulvany didn’t want to be part of their attempt to destroy evidence and pervert the course of justice. Clause 6 is as per below:

6.1   Mulvany undertakes that he will not publish, whether on the internet or otherwise, material from Mr Shane Dowling, or links to any material from, or any website operated or controlled by, Mr Shane Dowling (“Dowling material”).

6.2   Further, Mulvany undertakes that should it:

a)   come to his attention; or

b)   be brought to his attention by Capilano,

that a third party has posted Dowling material, he will use all reasonable endeavours to cause such posting to be removed forthwith, to the extent it is within his power to do so.

6.3   Mulvany undertakes that he will not publish, whether on the internet or otherwise, the recording made on or about 26 May 2016 of any conversation between him and Ben McKee (Recording) and will destroy any copy of the Recording in his possession.

6.4   Further, Mulvany undertakes that should it:

a)   come to his attention; or

b)   be brought to his attention by Capilano,

that a third party has a copy of the Recording, he will use all reasonable endeavours to cause such recording to be destroyed forthwith, to the extent it is within his power to do so.

7   Capilano Honey's and Ben McKee's legal team consists of: Sandy Dawson SC, Richard Keegan, Martin O'Connor, Alexander Latu and Monique Cowden.

8   On the 27th of May 2017 Richard Keegan sent me an email and made numerous false statements including but not limited to: “You should be aware, however, that it was at the explicit request of Mr Mulvany that you and your publication be included as part of any proposed settlement of his dispute with Capilano.”

9   In court on the 6th of April and 19th of April 2018, before Justice Lucy McCallum, barrister Sandy Dawson confirmed that Capilano Honey and Ben McKee wanted the video / sex tape destroyed to conceal what happened and that is why Capilano Honey and Ben McKee put the Dowling clause in a Deed of Release with Simon Mulvany.

10   In a judgment on the 8th of June 2018 the suppression orders and non-publication orders were lifted by Justice Lucy McCallum as they were so dodgy and based of lies by Capilano Honey, Ben McKee and their lawyers. The super-injunction had been lifted a few weeks earlier via consent as it was embarrassing for the court. The lifting of the suppression orders and non-publication orders was re-enforced by a unanimous decision by the Court of Appeal on the 3rd of October 2018. The bottom line is the applicants Capilano Honey and Ben McKee and their lawyers had lied and deceived the NSW Supreme Court to get suppression orders, non-publication orders and a super-injunction they had no legal right to get to try and conceal from the public they are selling poisonous and toxic honey.”

25. In support of the contempt motion was an affidavit of the defendant, dated 7 March 2019. It substantially repeated the allegations set out in the “Statement of Charge”. It also had annexed to it emails, reports on the Kangaroo Court Australia website and pages 22-36 of the transcript of the hearing before McCallum J on 6 April 2018. The relevance of these attachments was not clear.

26. The defendant required the leave of the Court to rely upon the contempt motion in these proceedings (the principal proceedings). This was so because five of the seven persons said to be affected by the orders sought were not parties to the principal proceedings and comprised the plaintiffs’ legal team. The defendant was unable to explain why he should be granted leave to file the contempt motion when it raised new issues which were only marginally relevant to the principal proceedings.

27. In those circumstances, I refused leave to the defendant to file the contempt motion in these proceedings. I did so because the contempt motion raised new issues for the first time, almost three years after the principal proceedings had been commenced. Importantly, the contempt motion purported to join five new parties to the principal proceedings. Those five additional parties made up the plaintiffs’ legal team, including their Senior Counsel. To allow that joinder in the principal proceedings would have effectively prevented the plaintiffs’ legal team from further participating in this matter other than as parties against whom orders were being sought.

28. As explained to the defendant, the most efficient procedure should he wish to continue with the matters raised in the contempt motion, was to commence separate proceedings in the Common Law Division seeking those declarations and orders. These proceedings would be stand alone proceedings and could proceed independently of the principal proceedings.

29. Because they were named as parties affected by the orders sought in the contempt motion, the plaintiffs’ legal team in the principal proceedings were not able to appear on the contempt motion. For that reason, Mr Gray of Senior Counsel was briefed. This was a reasonable precaution by the plaintiffs and the persons named in the contempt motion, given the serious allegations which had been made against them. Since the defendant has failed in his application to be allowed to rely upon the contempt motion in the principal proceedings, he should pay the costs of the plaintiffs and those other persons named in the contempt motion incurred in arranging representation on their behalf.

30. It was made clear to the defendant that the order refusing leave to rely upon the contempt motion in the principal proceedings does not affect his ability to commence fresh proceedings in the Common Law Division raising the same issues.

Orders

31. Accordingly, the orders which I make on the contempt motion are:

1. Leave to file the contempt motion in these proceedings is refused.

2. The defendant is to pay the costs of the respondents to the motion.

Plaintiffs’ application to strike out Defence

32. As already indicated, the plaintiffs’ Statement of Claim was filed on 15 May 2017. Its structure is relatively straightforward. Paragraphs 1-12 set out the injurious falsehood claim brought by the first plaintiff. Those paragraphs identify a number of representations and imputations by the defendant and seek an order that the defendant be restrained from publishing those representations and imputations. Damages and costs are also sought.

33. Paragraphs 13-45 articulate a claim by the second plaintiff for defamation based on a series of representations published by the defendant, particulars of which are set out. Those paragraphs identify the imputations to which those representations give rise.

34. On 8 June 2018, the defendant was ordered to file and serve his Defence by 27 June 2018. He did not comply with that order. On 29 June 2018, the defendant was again ordered to file and serve his Defence. On 13 July 2018, the defendant filed a document styled “Defence – Shane Dowling” (the Defence).

35. On 20 July 2018, the plaintiffs wrote to the defendant requesting the particulars required by the relevant rules in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and referring the defendant to individual applicable rules. No response was received.

36. The letter of 20 July 2018 was in the following form:

“We refer to your defence filed 13 July 2018.

The defence does not comply with the applicable rules of the Uniform Civil Procedure Rules 2005 and is liable to be struck out in the absence of proper particulars.

Notwithstanding, in order to comply with orders made in this proceeding by her Honour Justice McCallum on 29 June 2018 and without making any concessions as to the adequacy of the defence, and without prejudice to any application the plaintiffs may make in relation to it, the plaintiffs have today filed a reply, which is attached by way of service.

We request that you provide the particulars required by the Uniform Civil Procedure Rules 2005, and refer you to the following rules accordingly:

• As to particulars generally: Part 15 Division 1 (especially r 15.1);

• As to the particulars required for defamation defences generally Part 15 Division 4 (especially r 15.21);

•   As to the particulars required for a defence of justification: r 15.22;

•   As to the particulars required for a defence of qualified privilege: 15.27;

•   As to the particulars required for a defence of honest opinion and comment: 15.28.

Once we are in receipt of your response, we will advise you if the plaintiffs propose to move to strike out the defence or any other application. We request that a response be provided within 7 days in order to avoid any undue delay.”

37. On 3 August 2018, the plaintiffs wrote again to the defendant noting the lack of response and enclosing the strike out motion which sought an order striking out the Defence on the basis that:

1. no reasonable defence is disclosed; and/or

2. the defence has a tendency to cause prejudice, embarrassment or delay in the proceedings.

38. On 28 August 2018, the defendant was imprisoned for contempt. When the principal proceedings came before the Court again on 7 September 2018 the defendant appeared by AVL from prison and the strike out motion was stood over. On 22 March 2019, the strike out motion was listed for hearing on 3 May 2019.

39. In summary, the plaintiffs’ contention is that the Defence fails to comply with any of the basic rules or principles of pleading and merely states that the defendant will rely upon defences contained in the Defamation Act 2005 (NSW) without the required particulars. They contend that much of the Defence contains submissions and irrelevant material.

Applicable rules

40. The Defence must comply with both the general pleading rules and those specifically dealing with pleading and particularising defamation defences as contained in Pts 14 and 15 of the UCPR.

41. The Court may strike out a pleading in accordance with UCPR 14.28 which relevantly provides:

14.28(1)   The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a)    discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)    has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)    is otherwise an abuse of the process of the court.

…

42. The following statement of principle concerning the application of those Rules was set out by Walton J in Doe 1 v Dowling [2018] NSWSC 1278 (Doe 1 v Dowling) at [9]. I respectfully agree that the following accurately sets out the application of the Rules:

“9   …

No reasonable cause of action or defence

8.    It may be accepted that the power to strike out pleadings because they disclose no reasonable cause of action or defence should be exercised in only plain and obvious cases. The test has been variously expressed, including “so obviously untenable that it cannot possibly succeed” and “manifestly groundless”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (General Steel) at 128-129 per Barwick CJ; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (Dey) at 91 per Dixon J.

9.    The function and importance of properly pleaded and particularised defences in defamation proceedings was explained by Hunt J in Sims v Wran [1984] 1 NSWLR 317 at 321-330.

10.    The question for determination is whether a reasonable cause of action is disclosed, that is a cause of action which has some chance of success, or which could conceivably give the defendant a right to relief, or which, although weak, is properly debatable, and has some apparent legitimate basis, if the facts upon which it is alleged to be based are made good: Preston v Star City Pty Limited [1999] NSWSC 1273 at [37] (citations removed):

[37]    The question for determination, in accordance with the authorities, seems to me to come down to the question whether a reasonable cause of action is disclosed, ie a cause of action which has some chance of success, or which could conceivably give the plaintiff a right to relief, or which, although weak, is properly debatable, and has some apparent legitimate basis, if the facts upon which it is alleged to be based are made good …

[38]    It is one thing to strike out a case which is clearly doomed to failure. The jurisdiction to do so was properly described by Kirby P in Edwards (at 7) as a “beneficial one … designed to relieve parties of the expense, anxiety and distraction of meritless litigation”. It is another thing, however, to deprive a litigant of having an arguable case heard at trial. As Kirby P also said, in the same case (at p8):

“Unless the remedy is effectively confined to cases ‘for protecting a defendant from vexation by the continuance of proceedings which must be useless and futile’, it would have the consequence of substituting summary judicial impression for determination on the merits, having heard both evidence and argument in the normal way of our courts...”

Embarrassment

11.    A pleading is embarrassing if it is unintelligent, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence: McGuirk v The University of New South Wales [2009] NSWSC 1424 at [30]-[35]:

[30]    A pleading is embarrassing where it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him” […].

[31]     In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 at [18], Tamberlin J explained the concept of “embarrassment” with respect to pleadings:

“Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434.”

[32]    A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to […]

[33]    Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet […]. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading […].

[34] Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the Courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules […]. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend […].

[35]    It is not the function of the Court to draw or settle a party’s pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out […].”

Application of legal principle

43. The Defence is essentially in three parts – paragraphs 1-12 appear to relate to the injurious falsehood claim; paragraphs 13-61 appear to relate to the defamation claim; paragraph 62 comprises proposed interrogatories and categories for discovery.

44. Paragraphs 1-11 are a mixture of bare assertions, submissions and questions which had already been put to the plaintiffs in emails from the defendant. They include assertions in relation to the proceedings between the plaintiffs and Mr Mulvany. The contents of those paragraphs are described in paragraph 12 as being some of the “evidence” the defendant would be relying on to defend the injurious falsehood claim.

45. By way of illustration, the following are some of the paragraphs relied upon by the defendant.

“2   Before I published the articles I sent questions to Capilano Honey and Ben McKee and they refused to respond. The articles are in the public interest and are protected by qualified privilege both from a legislative viewpoint and common law viewpoint as per the 1997 High Court decision in “Lange v ABC”.

3   In relation to Capilano Honey’s injurious falsehood claim there is a reverse onus of proof so it is for them to produce the evidence to support their claim. It must be noted that Capilano Honey have had over twenty months to provide evidence but they have refused to do so.

…

6   In October 2017 Simon Mulvany filed and served the Notice to Produce as per below. On the 4th of May 2018 I was in court observing the Capilano Honey and Ben McKee v Simon Mulvany matter and I heard Simon Mulvany ask what was happening with the notice to produce. I heard lawyer Richard Keegan call out that there was “nothing to produce”. The only inference that can be drawn is that Richard Keegan lied in his May 2017 affidavit that Capilano Honey have no evidence to prove that they do not sell poisonous and toxic honey.”

46. As can be seen, that kind of material has no place in the defence and particularly not in the form in which it appears. While the thrust of paragraphs 1-12 of the Defence is that the plaintiffs cannot discharge their onus and prove the falsity of the representation sued on in the injurious falsehood claim, there is no particularised allegation that the representations are true.

47. The above extract also illustrates the illogicality of the defendant’s belief that a refusal by the plaintiffs to answer any of his questions made out the truth of the assertion contained in the question.

48. It follows that paragraphs 1-12 in their present form are embarrassing in that they contain irrelevant material and fail to disclose a reasonable defence to the plaintiffs’ injurious falsehood claims. They fail to discharge the basic obligation of informing the plaintiffs of the defence which they have to meet. Accordingly paragraph 1-12 of the Defence should be struck out.

49. Paragraphs 14-61 of the Defence are directed to specific paragraphs of the second plaintiff’s defamation claim which pleads eleven publications including their re-publication. The Defence may be summarised as:

1. admitting publication (paragraphs 14, 18, 22, 26, 30, 34, 38, 42, 46, 50 and 54);

2. not admitting re-publication (paragraph 58);

3. admitting the capacity of two of the eleven publications to convey the pleaded imputations (paragraphs 15 and 19) and otherwise denying the allegations of meaning (paragraphs 23, 27, 31, 35, 39, 43, 47, 51, 55 and 59);

4. inexplicable cross-references to paragraphs 1-12 of the Defence (paragraphs 16, 20, 24, 28, 32, 36, 40, 44, 48, 52, 56 and 60); and

5. repeated references to defences without complying with the UCPR (paragraphs 17, 21, 25, 29, 33, 37, 41, 45, 49, 53, 57 and 61).

50. In submissions the plaintiffs advised the Court that they did not press their application in relation to paragraphs 49a, 49b and 49c as set out above. Accordingly, paragraphs 13, 14, 15, 18, 19, 22, 23, 26, 30, 31, 34, 35, 38, 39, 42, 43, 46, 47, 50, 51, 54, 55, 58 and 59 of the Defence are not subject to challenge by the plaintiffs in the strike out motion and can remain as pleaded.

51. Paragraphs 16, 20, 24, 28, 32, 36, 40, 44, 48, 52, 56 and 60 are expressed in identical terms, i.e. “particulars include but are not limited to paragraphs 1-12 above”. When looked at in context, and having regard to the discursive and essentially irrelevant nature of much of the material in paragraphs 1-12, the paragraphs are meaningless. For them to perform any useful function in the Defence, at the very least further particularisation is required so that the paragraphs relied upon are identified and the purpose of that identification and reliance is set out. As currently pleaded, the meaning of those paragraphs is quite opaque and they should be struck out.

52. Paragraphs 17, 21, 25, 29, 33, 37, 41, 45, 49, 53, 57 and 61 are all expressed in identical terms. Paragraph 17 exemplifies the format used by the defendant:

“17   In further answer to paragraph 14 to the extent that it is found that the matter complained of carried any of the plaintiffs’ imputations and those imputations are defamatory to the second plaintiff (which is denied) the defendant says as follows:

(a)   The defendant relies on the defence of justification.

(b)   Publication was of a political nature containing political communication and is protected by both legislative and common law qualified privilege.

(c)   By reason of the substantial truth of the plaintiffs’ imputations publication of so many of the plaintiffs’ imputations as are not found to be substantially true did not further harm the reputation of the second plaintiff as many other imputations could have been drawn.

(d)   The publication related to matters of public interest.

(e)   The matter complained of contained expressions of opinion which were expressions of opinion rather than statements of fact.

(f)   Such expression of opinion was based on proper material and on no other material or alternatively, were based to some extent on proper material and represented an opinion which might reasonably be based on that material to the extent that it was proper material.”

53. There are a number of deficiencies in that form of pleading. The paragraphs fail to comply with either the general or specific rules applicable to a defamation Defence and do not attempt to articulate with particularity a single defence in response to the Statement of Claim. The requirements for the pleading and particularisation of Defences set out in UCPR 14.31-14.40 and 15.21-15.30 have not been complied with. Even if the mere reference to a Defence might be considered sufficient to comply with a requirement in Division 6 of Part 14 UCPR, there are no particulars in compliance with Division 4 of Part 15.

54. By way of illustration, it is insufficient merely to refer to some of those defences in the manner pleaded. The justification defence does not reveal to which imputations it is directed and the contextual truth defence does not plead a single contextual imputation said to be conveyed in addition to the plaintiffs’ imputations.

55. There are no particulars of the facts, matters and circumstances on which the defendant relies to prove any of these defences, contrary to Sims v Wran [1984] 1 NSWLR 317 (Hunt J). As a result, the pleading fails to perform the very basic task of informing the plaintiffs of the case they will be required to meet. What the defendant has done in substance is simply to refer to defences or a decided case without more. This does not amount to compliance with those provisions of the UCPR applicable to claims in defamation. Accordingly, this is not a case where the Defence simply fails to disclose a reasonable defence, but rather fails to disclose a defence at all.

56. Finally, the reference to interrogatories and discovery in paragraph 62 of the Defence should be struck out. It is not appropriate to include those matters in a Defence. To the extent that paragraph 62 of the Defence is to be understood as an application for an order that the plaintiffs answer interrogatories and give discovery, such an application is premature. As I explained in Munsie v Dowling:

“39   It is the practice of the Court (see Practice Note SC CL 4 – Defamation List) to order discovery and interrogatories only where the Defamation List Judge forms the view that such orders are necessary for the resolution of the real issues in dispute in the proceedings. The difficulty with making such orders as have been sought by the defendant is that the real issues in dispute in the proceedings are not known and will not be known until a proper defence has been filed and served.

40   It follows that unless and until a proper defence is filed and served, the defendant will not be in a position to demonstrate that he is entitled to the orders for discovery and interrogatories which he seeks”

57. Observations to similar effect were made by Walton J in Doe 1 v Dowling at [41].

58. It follows from the above that paragraphs 17, 21, 25, 29, 33, 37, 41, 45, 49, 53, 57, 61 and 62 of the Defence should be struck out.

59. The plaintiffs sought an order for costs on an indemnity basis. In support of that submission the plaintiffs relied upon the letter of 20 July 2018 in which they had pointed out the deficiencies in the Defence. The plaintiffs submitted that despite them doing so, the defendant had done nothing to address the matters which they had brought to his attention. The plaintiffs also submitted that the defendant was aware that his Defences in other defamation proceedings were in similar terms and had been struck out. The plaintiffs submitted that with such knowledge, the defendant should have addressed the matters raised by them in their letter.

60. When the question of the costs of the strike out motion was raised with the defendant he could not offer any reason as to why he should not pay those costs. Accordingly, the only issue before the Court is the basis upon which those costs should be assessed.

61. Although there is considerable force in the submission of the plaintiffs, I am not prepared to order indemnity costs against the defendant in relation to the strike out motion. Although the defendant has experience in the defamation jurisdiction, and has been the subject of other strike out applications in the past, due allowance has to be made for the fact that he is not legally trained and may well have struggled to understand the full effect of the solicitor’s letter of 20 July 2018.

57. For similar reasons, I propose to grant leave to the defendant to file and serve an Amended Defence which complies with the UCPR. Given the somewhat glacial pace with which this matter has proceeded, the defendant should not be given an unlimited time within which to re-plead his Defence. I propose to allow 28 days.

Orders

63. The orders which I make in relation to the strike out motion are as follows:

1. The following paragraphs of the Defence filed 13 July 2018 are struck out: 1-12, 16, 17, 20, 21, 24, 25, 28, 29, 32, 33, 36, 37, 40, 41, 44, 45, 48, 49, 52, 53, 56, 57, 60, 61 and 62.

2. The defendant is granted leave to file an Amended Defence within 28 days.

3. At this time I decline to make any order for discovery and interrogatories.

4. The defendant is to pay the plaintiffs’ costs of the motion to strike out the Defence.

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Amendments

14 May 2019 - Error in appearances of counsel on cover-sheet.

Decision last updated: 14 May 2019