Carter v Blanco - [2024] WASC 447

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CARTER -v- BLANCO [2024] WASC 447
CORAM:   LEMONIS J
HEARD:   17 JUNE 2024
DELIVERED          :   5 DECEMBER 2024
FILE NO/S:   CIV 1679 of 2023
BETWEEN:   PETER CARTER
Plaintiff
AND
CAMILO BLANCO
Defendant

Catchwords:

Defamation - Plaintiff's application to strike out parts of the defence - Defence relies on alternative imputations to those pleaded by the plaintiff for purposes of Hore-Lacy and contextual truth defences - Whether the alternative imputations are capable of arising from the publications complained of - Defence pleads fair comment at common law and honest opinion under s 31 of the Defamation Act 2005 (WA) - Whether the publications complained of are capable of constituting comment or opinion - Relevance of the defendant's beliefs concerning the plaintiff's conduct to the defence of qualified privilege

Legislation:

Defamation Act 2005 (NSW)
Defamation Act 2005 (Vic)
Defamation Act 2005 (WA)

Result:

Plaintiff's application to strike out paragraphs of the defence is allowed in part

Representation:

Counsel:

Plaintiff	:	I W Priddis
Defendant	:	A J Tharby

Solicitors:

Plaintiff	:	Graham & Associates Lawyers
Defendant	:	Bennett

Case(s) referred to in decision(s):

Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228
Besser v Kermode [2011] NSWCA 174
Buckeridge v Walter [2007] WASCA 19
Callan v Chawk [2023] FCA 898
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245
Clarke v Norton [1910] VLR 494
Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255
David Syme & Co Ltd v Hore‑Lacy [2000] VSCA 24
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Dutton v Bazzi [2021] FCA 1474
Fairfax Media Publications v Zeccola [2015] NSWCA 329
Fenn v Australian Broadcasting Corporation [2018] VSCA 166
Green v Fairfax Media Publications Pty Ltd [No 4] [2021] WASC 474
Hore‑Lacy v Cleary [2007] VSCA 314
Hyndes v Nationwide News Pty Limited [2011] NSWSC 633
Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104
Maher v Nationwide News Pty Ltd [2013] WASC 254
Maisel v Financial Times Limited [1915] 3 KB 336; (1915) 113 LT 772
Marshall v Smith [2013] WASC 451
Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Pty Ltd [2022] NSWCA 150
Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270
Nationwide News Pty Ltd v Moodie [2003] WASCA 273
Nationwide News Pty Ltd v Warton [2002] NSWCA 377
Newnham v Davis (No 2) [2010] VSC 94
O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289
Rayney v Pan MacMillan Australia Pty Ltd [2014] WASC 129
Rayney v The State of Western Australia [No 2] [2009] WASC 133
Setka v Abbott [2014] VSCA 287
Soultanov v The Age Company Limited [2009] VSC 145
Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
West Australian Newspapers Ltd v Elliott [2008] WASCA 172
Younan v Nationwide News Pty Ltd [2013] NCSWCA 335

LEMONIS J:

This proceeding is a defamation action. Typically of defamation actions, it is now beset by an interlocutory dispute regarding pleadings.
Specifically, the plaintiff applies to strike out particular aspects of the defence. The defence is wide‑ranging, which is common nowadays given the various and complex defences provided by the common law and statute.
The plaintiff's complaints are directed towards three aspects of the defence.
First, the defendant pleads a number of alternative imputations to those pleaded by the plaintiff. Those alternative imputations are relied on in support of a common law defence often described as a Hore‑Lacy defence. Those same alternative imputations are also relied on in support of a defence of contextual truth under s 26 of the Defamation Act 2005 (WA) (Defamation Act).
There are four such alternative imputations. The plaintiff's principal contention is that those alternative imputations are not capable of arising from the publications about which the plaintiff sues and further, are too imprecise. The plaintiff also contends that the alternative imputations are substantially different from the plaintiff's imputations and thus cannot support a Hore‑Lacy defence. Further, the plaintiff contends that the alternative imputations are not of sufficient gravity to support the contextual truth defence.
Second, the defendant pleads a defence of qualified privilege at common law and pursuant to s 30 of the Defamation Act. The plaintiff contends that certain matters relied on in support of these defences raise irrelevant considerations, and it is unduly onerous for the plaintiff to be required to address such matters.
Third, the defendant pleads a defence of fair comment at common law and honest opinion pursuant to s 31 of the Defamation Act. Broadly speaking, the plaintiff contends that the publications about which he sues are not capable of being understood by an ordinary reasonable person as constituting comment or opinion.

General principles

The general principles regarding strike out applications are well known and do not need to be set out in full. They are set out in Vantage Holdings Group Pty Ltd v Donnelly [No 4],[1] albeit in the context of an application to strike out a statement of claim.
[1] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60].
There are three matters I will emphasise:
1.in assessing whether there is a reasonable defence, 'reasonable' means reasonable according to law. If the matters pleaded conceivably give rise to an arguable defence then it will be held to be reasonable;
2.the mere fact the defence appears weak is not of itself sufficient to strike it out;
3.pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action. This arises where the pleading (or an aspect of it) is evasive, conceals or obscures the real questions in controversy, is ambiguous or not reasonably intelligible, raises immaterial or irrelevant issues, fails to confine the issues or to state the case of the party in question with reasonable particularity or raises a case in terms which are simply too general.

The pleaded cases

It is useful to first explain the pleaded cases for the plaintiff and the defendant to the extent necessary to dispose of the strike out application. In doing so, I will summarise the allegations made in the statement of claim and the defence, as well as the matters published by the defendant of and concerning the plaintiff. I wish to make clear that the summary must not be understood as conveying that I accept any of those assertions.

The statement of claim

In summary, the statement of claim asserts the following matters.
The plaintiff is the Mayor of the Town of Port Hedland. He was initially elected to that office in 2020 for one year and was re‑elected in October 2021 for a further term of four years.
The defendant is the former Mayor of the Town of Port Hedland, and was the Mayor for a period of approximately four years prior to the plaintiff's election as Mayor.
On 31 May 2023 an ordinary council meeting of the Town of Port Hedland was held. Both the plaintiff and the defendant attended.
There was public question time during which the defendant:[2]
1.asked the plaintiff whether he knew what a Ponzi scheme was;
2.described that a Ponzi scheme was 'a form of fraud in which belief in a success of non‑existent enterprise is fostered by the payment of a quick return to first investors from money invested by later investors';
3.asked the plaintiff whether he had been promoting to anyone, in order to receive finance from investors, either in Australia or Vietnam, a deal where 4,000 houses were to be built in Port Hedland and then sold into the market for between $800,000 and $1 million each, which the defendant described as a $4 billion deal.
[2] Paragraphs 6 - 8 of Annexure A to the Statement of Claim.
The plaintiff said he found the question completely out of order and said it would not be recorded or responded to.[3]
[3] Paragraph 10 of Annexure A to the Statement of Claim.
These matters set the background to the plaintiff's specific claims for defamation.
The plaintiff alleges that at the council meeting on 31 May 2023, the defendant spoke and thereby published words about the plaintiff to persons who were present or who were viewing or listening online. This constitutes the first matter complained of.
The first matter complained of is set out in Annexure B to the statement of claim. Of most relevance to this application are the following passages, which include the passages relied on by the plaintiff for his pleaded imputations:
6.I was contacted earlier this year by some people overseas because the only information they could find on Peter Carter were stories and comments that I'd written about Pilbara Airlines and the hundreds of millions of dollars Peter Carter claims to have secured through his Aboriginal corporation to purchase land and business.
7.They've informed me that he has had multiple meetings promoting a housing development in Hedland - promoting a housing development in Hedland - that sees 4,000 houses built, and sold, for a million dollars each. So it's a $4 billion deal.
8.Peter Carter has informed the investor group that he has secured local, state and federal funding towards the development. Does that sound familiar to you?
9.Now I've attached the media releases that you have issued that support his proposal.
10.He's issued them with a business card that shows a business name called Source Connect. Now that's not registered in Australia in the ABN lookup. It might be registered in Ho Chi Minh City in Vietnam, but that's a question you should ask him.
11.The address of the office is bogus. We sent someone over there to check out the building. No one knows him and the business is not listed within the building in the business list …
12.(plaintiff): [interjecting] Camilo, it's actually a registered office, it does exist, thank you very much. [crosstalk]
13.(defendant): Look, youse just argue about this yourselves, I'm not interested, this is my time. Youse can just be quiet and listen.
14.So the reason I'm telling you this, and we just had an admission from the Mayor, so youse need to be awake here. Okay?
15.The reason I'm telling you this before the newspaper article is published is because I believe, but I haven't confirmed it yet, that the land that relates to the development proposal is being talked about tonight in the Scheme Amendment Item 12.3.2, the ominous Scheme Amendment number 1 to the Local Planning Scheme number 7. Okay?
16.Now, regardless whether I'm correct or not, all right? If I'm incorrect about the connection between Bosner Estate, that doesn't separate the financial interest that exists between Peter Carter and any development application that comes before the Town of Port Hedland Council in an agenda item because it is a fact that he's acting as a developer and soliciting funds from investors for the development proposal.
17.Now, the CEO and Executive should understand the seriousness of this statement.
18.The people I'm talking to will be watching this recorded livestream.
19.Now, I'm very interested to see what happens because this council has continuously ignored the warnings that I have given you.
The plaintiff pleads that in its ordinary and natural meaning, the first matter complained of carried the following defamatory imputations about the plaintiff:[4]
[4] Paragraph 9 of the Statement of Claim.
a.the plaintiff is engaged in fraud, by reason that he is informing investors that he has secured local, State and Federal Government funding toward a housing development he claims will see 4,000 houses built and sold in Port Hedland for $1 million each, in circumstances where he knows he has not secured the funding; further or alternatively,
(Annexure B, paragraphs 6, 7, 8)
b.the plaintiff is engaged in fraud, by reason that he is using a fake business to promote a housing development he claims will see 4,000 houses built and sold in Port Hedland for $1 million each;
(Annexure B, paragraphs 6, 7, 8, 10, 11)
c.the plaintiff has deliberately not disclosed the conflict of interest between his financial interests in a housing development proposal and his role as Mayor of the Town of Port Hedland;
(Annexure B, paragraphs 6, 7, 8, 15, 16)
d.the plaintiff is corruptly using his position as Mayor of the Town of Port Hedland to cause a housing development application, in which he has an undisclosed financial interest, to be approved for development; or alternatively,
i.the plaintiff is knowingly making improper use of his position as Mayor of the Town of Port Hedland to cause a housing development application, in which he has an undisclosed financial interest, to be approved for development;
(Annexure B, paragraphs 6, 7, 8, 15, 16)
e.the plaintiff is corruptly using his position as Mayor of the Town of Port Hedland to support amendments to planning laws which will increase the prospects of a housing development application, in which he has an undisclosed financial interest, being approved; or alternatively,
i.the plaintiff is knowingly making improper use of his position as Mayor of the Town of Port Hedland to support amendments to planning laws which will increase the prospects of a housing development application, in which he has an undisclosed financial interest, being approved;
(Annexure B, paragraphs 6, 7, 8, 15, 16)
The plaintiff also pleads a further case directed to what the defendant said at the council meeting. The plaintiff alleges that by reason of certain extrinsic facts, the first matter complained of carries each of the defamatory meanings set out at [20] above as well as additional defamatory imputations about the plaintiff.[5] The extrinsic facts include the questions summarised at [15] above.
[5] Paragraph 10 of the Statement of Claim.
The additional imputations are that:[6]
a.the plaintiff is operating a Pilbara based Ponzi scheme that he claims will see 4,000 houses built and sold in Port Hedland for $1 million each; and
b.the plaintiff is corruptly using his position as Mayor of the Town of Port Hedland to promote a Pilbara based Ponzi scheme that he claims will see 4,000 houses built and sold in Port Hedland for $1 million each; or alternatively,
i.the plaintiff is knowingly making improper use of his position as Mayor of the Town of Port Hedland to promote a Pilbara based Ponzi scheme that he claims will see 4,000 houses built and sold in Port Hedland for $1 million each.
[6] Paragraph 10 of the Statement of Claim.
The plaintiff also complains about a publication made by the defendant on his Facebook page on 17 June 2023. This publication is set out in Annexure C to the statement of claim and is defined as the second matter complained of. The written caption accompanying the video states:
This video is about the Mayor's new business proposal he is selling to investors in Vietnam, I asked questions at the 31 May 2023 council meeting, watch and see what happened.
Of most relevance to this application, the second matter complained of contains the following words:
1(defendant): Good day everyone. I'm going to talk about another scheme that our mayor Peter Carter is up to at the moment and the manipulation, the Council and the administration's having on fair question of our elected representation in order to hold these people to account.
2That's our jobs community members when we see unscrupulous practises.
3Now, at the last ordinary council meeting, I asked the Mayor Peter Carter about a development he's selling to investors in Vietnam where he is proposing to build 4,000 houses in Hedland and sell them for about a million dollars [apiece] that is a 4 billion deal.
4He's also stating that he's going to bring over workers from Vietnam to build it and to pay them at a rate of pay that they get in Vietnam.
5He's, he's also engaging with building companies and suppliers to pre-prepare all of these houses and product as a flat stack proposal and then ship it to [Hedland] and use the cheap labour to erect all of this stuff here in Port Hedland.
6We've seen this sort of proposal floated before in Newman at the last mining boom with Singapore registered company Macro Realty Developments. Now, I'm sure you've heard of those people.
7Now, those investors lost about 180 million while the promoters were living large on the investment money.
8It was called a Ponzi scheme by ASIC.
9So in a first for the town of Port Hedland, the livestream was removed from the town's website after these questions were asked so they could edit out any area they determined to be out of order and that Peter Carter ruled 'out of order', even though Peter Carter admitted in statement time to the council that the business and the office in Vietnam was legit.
10I did explain to the council the correct process for answering questions from elected members that have a financial interest in the matter, and that is that they must leave the room and let the next in line take the presiding member's position in order to take the questions fairly.
11Obviously that didn't happen, so my questions were deleted and it was determined that the questions contained offensive or objectable expressions or are otherwise inflammatory nature and they're excluded from the official record.
12So those questions that I asked: number 1, I asked the mayor, are you aware of what a Ponzi scheme is? And he didn't know.
13So I explained it's a form of fraud in which belief in the success of a non-existent enterprise is fostered by the payment of quick returns to the first investors from money invested from later investors.
14A classic Ponzi scheme is built on treachery and lies.
15The next question I asked was, have you been promoting to anyone, in order to receive finance from investors either in Australia or Vietnam, a deal where 4,000 houses have been built in Port [Hedland] and then sold into the market for between 800 to a million dollars apiece?
16Then I handed out some papers which showed the town of Port [Hedland] advertising, housing proposals that have been backed by state and federal government.
17Now, Peter Carter has also been telling these people that he has government back funding to move this proposal forward.
18My third question was in relation to a business card that I supplied the Council at that time, and I said, can you explain what the business card on the back page is in relation to or the core business of Source Connect?
19Now, he ruled those questions out of order and didn't answer any of it.
20So I'm going to give you a quick example of how big this proposal is compared to the town of Port Hedland.
21We currently have about 5,000 residential lots that have housing on the land, and we have about 1,500 vacant residential lots. So the total residential lots we have in Hedland is 6,500. That's the total 5,000 with houses, 1,500 without.
22So this proposal needs about 60% of the current residential landmass we have in Hedland, the whole town to get off the ground.
23We, and we also already have in place a development for a substantial amount of residential blocks, and that parcel of land is in South Hedland and it's called the Western Edge. It starts at the hospital site in South Hedland on Collier Road and goes past Yari Road all the way around the back of fifth cell, the old fifth cell, all the way around to Osprey Village across from the South Hedland tip.
24Now, that parcel of the land is only 2,000 residential blocks. So you get the idea of how big the land needs to be to put 4,000 houses on, and there isn't that land available anywhere in Port Hedland.
25The only piece of land we have to put substantial housing on is the Western Edge, and all that is now is a deposit plan, which means developers, if they want to buy that land, they can come in and develop all of the services that are needed, power, sewage, water, all of that sort of stuff, roads, the infrastructure needed to then subdivide and put the 2,000 residential blocks in place.
26There is without a doubt, a serious financial conflict of interest happening that is being covered up by the executive and the Council because the minutes of the meeting are being edited to remove the questions I've asked, and the most important outcome here is to make sure answers are provided to the people of Hedland about the shady business dealings Peter Carter is promoting under the pretext that the Local, State and Federal Government is funding and backing.
27This new proposal, the state Labor Government has reminded and warned Western Australians about the risk of overseas scammers, but true to fashion, here we have another scam or Ponzi scheme in the making, and again, the State Government will do nothing to ensure people in Australia or Vietnam are not being ripped off by this business proposal being advertised by the mayor Peter Carter.
28This is an ongoing pattern of behaviour that mirrors the Pilbara Airlines fantasy. I'm sure you would've heard about that, where he was going to have direct international fights out of Port Hedland to Vietnam, but then it went from Karratha to Vietnam or elsewhere in the world, and then it came back to Port Hedland again that was going to employ hundreds of people and they were going to spend hundreds of millions of dollars in planes and buildings at the South Hedland Airport.
29In another proposal, he stated to many people that he had government funding worth hundreds of millions of dollars where he was claiming to be Aboriginal and using an Indigenous corporation as a front to convince people of its legitimacy as well as claiming to have secured the finance from the Government under the umbrella of the Aboriginal corporation to purchase land and business worth over 300 million.
…
32Now, you can have a look and listen to my statement on the night that gives you a little more insight into this story, and I also encourage everybody to start taking an interest in our Local Government coming down to the council meetings and to start asking questions about the proposals that our Mayor is putting forward, because at the end of the day, what happens here is industry and business and government look at this sort of stuff, and then they don't want anything to do with the town of Port Hedland.

The second matter complained of also contained a screen recording of parts of the live streaming of the council meeting held on 31 May 2023. The recording included the matters set out at pars 6 to 19 at [19] above. These matters were numbered pars 39 to 52 in Annexure C to the statement of claim (which sets out the second matter complained of).
The plaintiff pleads:
12.The Second Matter Complained Of, in its ordinary and natural meaning, carried the following defamatory imputations about the plaintiff:
a.the plaintiff is engaged in fraud, by reason that [he is] informing investors that he has secured local, State and Federal Government funding toward a housing development he claims will see 4,000 houses built and sold in Port Hedland for $1 million each, in circumstances where he knows he has not secured the funding;
(Annexure C, paragraphs 1 - 8, 12 - 17, 26 - 29, 39 - 50)
b.the plaintiff is engaged in fraud, by reason that he is using a fake business to promote a housing development he claims will see 4,000 houses built and sold in Port Hedland for $1 million each;
(Annexure [C], paragraphs 1 - 8, 12 - 29, 39 - 50)
c.the plaintiff is operating a Pilbara based Ponzi scheme that he claims will see 4,000 houses built and sold in Port Hedland for $1 million each;
(Annexure C, paragraphs 1 - 8, 12 - 29, 32, 39 - 50)
d.the plaintiff is corruptly using his position as Mayor of the Town of Port Hedland to promote a Pilbara based Ponzi scheme that he claims will see 4,000 houses built and sold in Port Hedland for $1 million each; or alternatively,
i.the plaintiff is knowingly making improper use of his position as Mayor of the Town of Port Hedland to promote a Pilbara based Ponzi scheme that he claims will see 4,000 houses built and sold in Port Hedland for $1 million each;
(Annexure C, paragraphs 1 - 29, 32, 39 - 50)
e.the plaintiff is corruptly using his position as Mayor of the Town of Port Hedland to cover up his involvement in a Pilbara based Ponzi scheme that he claims will see 4,000 houses built and sold in Port Hedland for $1 million each; or alternatively,
i.the plaintiff is knowingly improperly using his position as Mayor of the Town of Port Hedland to cover up his involvement in a Pilbara based Ponzi scheme that he claims will see 4,000 houses built and sold in Port Hedland for $1 million each.
(Annexure C, paragraphs 1 - 29, 32, 39 - 50)

The defence

The amended defence (defence) denies that the matters complained of convey the imputations pleaded by the plaintiff.
In the alternative the defence pleads that, to the extent the matters complained of convey the imputations pleaded at 9a, 9b, 12a or 12b of the statement of claim, such imputations are 'true, or true in substance or effect' and the defendant therefore has a defence of justification pursuant to the common law, and a defence of substantial truth pursuant to s 25 of the Defamation Act.[7]
[7] Paragraph 15 of the Defence.
The defence pleads the following four alternative imputations in respect of the first and second matters complained of:[8]
[8] Paragraph 16 of the Defence.
16.Further and in the alternative if, which is denied, the First Matter Complained Of or the Second Matter Complained Of conveyed any meanings defamatory of Mr Carter:
16.1the First Matter Complained Of and the Second Matter Complained Of conveyed that:
16.1.1Mr Carter engaged in fraud by claiming to others to have secured government funding for his business purposes in circumstances where he knew he had not secured the funding (Alternative Imputation 1);
16.1.2 Mr Carter was obligated to make public disclosures of his interests but deliberately failed to do so (Alternative Imputation 2);
16.1.3Mr Carter is corruptly using his position as Mayor to promote his personal business interests (Alternative Imputation 3); and
16.2the Second Matter Complained Of also conveyed that Mr Carter used his position as Mayor of the Town of Port Hedland to censor questions relating to his conduct at a council meeting (Alternative Imputation 4).
The defence alleges that each of the alternative imputations is true or true in substance or effect, and therefore the defendant has a defence of justification at common law and a defence of substantial truth pursuant to s 25 of the Defamation Act.[9]
[9] Paragraph 17 of the Defence.
The defendant gives particulars as to the truth of each alternative imputation.
The matters relied on for the truth of the alternative imputations can be summarised as follows.
In respect of alternative imputation 1, the defendant relies on the following:
1.matters pertaining to the proposed 4,000 home property development referred to in the publications;[10]
2.matters pertaining to the plaintiff as Chairman of an Aboriginal corporation writing a letter to the owners of the Peppers Kings Hotel Perth expressing an interest to purchase the Hotel for $28 million and claiming to have Government based funding for that transaction. The defendant asserts the plaintiff knew that the funding claim was false;[11]
3.matters pertaining to a letter sent 11 June 2021 by the plaintiff as Chairman of the Aboriginal corporation to a Sydney based finance broker regarding Pilbara Airlines Pty Ltd, including that the corporation controlled 95% of the shares in Pilbara Airlines and the corporation had Indigenous, State and Federal financial support. The defendant asserts the plaintiff knew that the funding claim was false;[12]
4.matters pertaining to a letter sent 14 June 2021 by the plaintiff as chairman of the Aboriginal corporation to the owner of a parcel of land at Daliak in which the plaintiff expressed interest in purchasing the land. The letter complained that the corporation had government backed funding in respect of 50% of an agreed price, which the defendant says the plaintiff knew to be false.[13]
[10] Paragraphs 26 ‑ 30A, 50 and 51 of the Defence.
[11] Paragraphs 44, 45, 50 and 51 of the Defence.
[12] Paragraphs 46, 47, 50 and 51 of the Defence.
[13] Paragraphs 48, 49, 50 and 51 of the Defence.
In respect of alternative imputation 2, the defendant relies on the following:
1.matters pertaining to the proposed 4,000 home property development referred to in the publications and the plaintiff deliberately not disclosing his interests in that development;[14]
2.assertions that the plaintiff did not disclose in his annual council return for the year ended 30 June 2021 the principal business of the Aboriginal corporation or that he was a member of that corporation;[15]
3.assertions that the plaintiff was leasing residential premises in Perth and in South Hedland which he did not disclose in his annual return for the year ended 30 June 2023, which the defendant asserts the plaintiff was obliged to disclose.[16] I presume the defendant alleges that the annual return was lodged with the Port Hedland council, however the defence does not expressly say so.
[14] Paragraphs 31 ‑ 43 of the Defence.
[15] Paragraph 52 of the Defence.
[16] Paragraphs 53 ‑ 56 of the Defence.
In respect of alternative imputation 3, the defendant relies on the following:
1.matters pertaining to the proposed 4,000 home property development referred to in the publications;[17]
2.assertions that the plaintiff used his position as Mayor of the Town of Port Hedland to attempt to induce a carbonating drink manufacturing business to deal with the plaintiff in respect of Pilbara Airlines.[18]
[17] Paragraphs 26 ‑ 30A and 33 - 38 of the Defence.
[18] Paragraphs 58 ‑ 64 of the Defence.
In respect of alternative imputation 4, the defendant relies on the following:
1.matters which occurred at the council meeting held on 31 May 2023 and the contents of the minutes of that meeting;[19]
2.matters which occurred at council meetings held on 26 October 2022, 14 December 2022, 1 February 2023 and 29 March 2023.[20]

Qualified privilege

[19] Paragraphs 71 ‑ 74 of the Defence.

[20] Paragraphs 65 ‑ 70 of the Defence.

The defendant also pleads a defence of qualified privilege pursuant to the common law and pursuant to s 30 of the Act in respect of each of the matters complained of.[21]
[21] Paragraphs 19 ‑ 20 of the Defence.
The defence alleges that the defendant's conduct in publishing each matter complained of was reasonable in the circumstances. The defence sets out particulars relied upon in support of this allegation, described as particulars of reasonableness. The defence relies on the same particulars of reasonableness for each matter complained of.[22]
[22] Paragraph 20.4 particular (i) of the Defence.
Particular (vii) alleges that the statements made by the defendant:[23]
were made in the circumstances pleaded in paragraphs 26 to 96 of this defence which were understood by [the defendant] to be true.
[23] Paragraph 19.4 particular (vii) of the Defence.
It is this particular which is the subject of the plaintiff's strike out application. Paragraphs 26 to 96 of the defence include matters that the defendant relies upon in support of his justification defences in respect of the imputations and the alternative imputations.

Defences of fair comment and honest opinion

In respect of each matter complained of, the defence pleads fair comment at common law and honest opinion under s 31 of the Defamation Act. This is pleaded by way of one combined plea for each matter complained of. The combined pleas rely on substantially the same material for the fair comment defence and the s 31 defence.[24]
[24] Paragraphs 21 and 22 of the Defence.
The defence asserts that each matter complained of was 'an expression of opinion' by the defendant.[25]
[25] Paragraphs 21.1 and 22.1 of the Defence.
The defence particularises the following matters in support of the allegation that the matters complained of are expressions of opinion. The particulars relied on are the same for each matter. The particulars are:
1.the defendant expressly stated that he was acting on information from overseas investors;
2.the defendant expressly identified that Source Connect might be registered in Vietnam;
3.the defendant stated that he considered the address was bogus, to which the plaintiff clarified that the address was simply a registered office, which was expressly accepted by the defendant.[26]
[26] Paragraph 21 particular (i) and par 22 particular (i) of the Defence.
The defence asserts that the opinion related to a matter of public interest and was also based on proper material.
The matter of public interest relied on is the same for each matter complained of.[27]
[27] Paragraph 21 particular (ii) and par 22 particular (ii) of the Defence.
The proper material relied on for each matter complained of is slightly different. The plea in respect of the second matter complained of relies on the same material relied on for the first matter complained of and adds two additional matters.[28]

Mitigation of damages

[28] Paragraph 21 particular (iii) and par 22 particular (iii) of the Defence.

The defendant relies on the substantial truth of the imputations and the alternative imputations 'as are proved' in mitigation of the plaintiff's entitlement to damages.[29]
[29] Paragraph 24.1 of the Defence.

Strike out application - alternative imputations

The principal focus of the plaintiff's application is on the alternative imputations.
The defendant relies on the alternative imputations for both his alternative justification defence and his contextual truth defence.
It is useful to first explain the nature of those defences, and where they differ.

Alternative justification defence

The alternative justification defence is commonly known in Australia as a Hore‑Lacy defence, which derives from the judgments of Ormiston and Charles JJA in David Syme & Co Ltd & Anor v Hore‑Lacy.[30] Their Honours clarified the application of what is commonly known as the Polly Peck defence.
[30] David Syme & Co Ltd v Hore‑Lacy [2000] VSCA 24.
The defence in this case pleads an alternative justification defence at both common law (Hore‑Lacy) and pursuant to s 25 of the Defamation Act. The parties' arguments did not suggest that s 25 raised any different considerations to those raised by a Hore‑Lacy defence. Accordingly, it is not necessary to consider whether s 25 can be used as an additional basis for an alternative justification type defence.[31]
[31] See Setka v Abbott [2014] VSCA 287.
The underlying premise for the Hore‑Lacy defence is the recognition that:[32]
… a plaintiff could, after pleading specific meanings by way of false innuendo, succeed, at trial on a meaning other than the meanings pleaded, provided that the meaning was not substantially different from and was not more injurious than the meanings pleaded, and that the defendant was not in all the circumstances unfairly prejudiced by allowing that meaning to go to the jury.
[32] Hore‑Lacy [52].
The Hore‑Lacy defence is the 'other side of the coin' to the premise above, in that it allows a defendant to plead a meaning not more serious and not substantially different from the meaning pleaded by the plaintiff, and to seek to justify that alternative meaning.[33] As was observed in Newnham v Davis (No 2):[34]
If the defendant were to seek to defend imputations which did not answer that description, the defendant would thereby raise false issues at the trial, which are not agitated, nor sought to be agitated, by the plaintiff.
[33] Hore‑Lacy v Cleary [2007] VSCA 314 [27].
[34] Newnham v Davis (No 2) [2010] VSC 94 [18].
The approach adopted in Hore-Lacy has been endorsed in Western Australia.[35]
[35] Nationwide News Pty Ltd v Moodie [2003] WASCA 273 [13] ‑ [14] (Anderson J), [57] ‑ [61] (Steytler J). See also, West Australian Newspapers Ltd v Elliott [2008] WASCA 172 [30] ‑ [31] and [72].
Further, in West Australian Newspapers Ltd v Elliott, Steytler P explained the preferred approach to assessing whether a meaning was substantially different as follows:[36]
… there is general, although not universal, support for the proposition that a plaintiff who has pleaded specific meanings by way of false innuendo may only succeed at trial on some other meaning if it is not substantially different from and not more injurious than the meanings pleaded. If that is correct then, as Charles JA pointed out in Hore‑Lacy [52], the issue of whether the meaning was substantially different might be tested by asking whether the defendant would have been entitled to plead a different issue, adduce different evidence or conduct the case on a different basis or, possibly, whether the justification would be substantially different. If the Polly Peck imputation pleaded by the defendant is one that would have satisfied the test enunciated, had it been pleaded by the plaintiff, it will be allowed. If it would not have satisfied that test, it will not be allowed: Buckeridge [20]. At least in the absence of further authority, that is the approach that should, in my opinion, be followed by the present two-judge court.

Contextual truth defence

[36] West Australian Newspapers Ltd v Elliott [2008] WASCA 172 [31].

Section 26 of the Defamation Act provides a defence of contextual truth:
It is a defence to the publication of defamatory matter if the defendant proves that -
(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
(b)the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
In Western Australia, a defence of contextual truth applies in respect of imputations that are 'in addition to the defamatory imputations of which the plaintiff complains'. Thus, the defendant cannot rely on the truth of one of the plaintiff's pleaded imputations for a contextual truth defence.[37] The defendant's contextual imputation must differ in substance from the plaintiff's imputations.[38] The 'key ingredient of difference in substance is that the contextual imputation is not a permissible variant of a meaning pleaded by the plaintiff'.[39]
[37] See for example Besser v Kermode[2011] NSWCA 174, which considered a then identical provision of the Defamation Act2005 (NSW).
[38] Fairfax Media Publications v Zeccola[2015] NSWCA 329.
[39] Fenn v Australian Broadcasting Corporation [2018] VSCA 166 [108].
In all States and Territories of Australia other than Western Australia and the Northern Territory, the applicable defamation legislation has been amended with effect from varying stages of 2021 to remove the requirement that the contextual truth imputations be 'in addition to' the plaintiff's imputations. For example, s 26(2) of the Defamation Act 2005 (Vic) now provides:
The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains.

Interaction between Hore‑Lacy and contextual truth defences

Prior to the Defamation Act 2005 (Vic) being amended, the interaction between a Hore‑Lacy defence and a contextual truth defence was explained by the Victorian Court of Appeal in Setka v Abbott as follows:[40]
… [Hore‑Lacy] justification takes as its starting point a denial of the meanings ascribed to a publication by the plaintiff. It then asserts other meanings. If it succeeds, the only available meanings have been justified and the plaintiff fails. A contextual truth defence, on the other hand, takes as its starting point a finding by the trier of fact that one or more of the plaintiff's pleaded imputations has been established. There are then pleaded additional meanings, which are alleged to be substantially true, and such as do not further harm the plaintiff. If, as here, the defendants plead [Hore‑Lacy] justification and contextual truth, and particularise the same imputations, it follows (at least in any practical sense) that they cannot establish both defences.
(footnotes omitted)
[40] Setka v Abbott [13] (Warren CJ and Ashley JA).
In Western Australia, a further difference is that a contextual truth imputation must differ in substance from the plaintiff's pleaded imputations in order for it to be 'additional', whereas a Hore‑Lacy imputation must not be substantially different from the plaintiff's pleaded imputations. While it may be possible to plead the same alternative imputation for both a Hore‑Lacy justification defence and a contextual truth defence, only one can succeed.[41]

Courses available to a defendant seeking to justify defamatory matter

[41] Fenn [109].

In Besser v Kermode, McColl JA (with whom the other members of the NSW Court of Appeal agreed) explained that the available courses of action open to a defendant seeking to justify the defamatory matter are:[42]
1.prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true: s 25 (and common law justification);
2.prove that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carries nuanced imputations which are substantially true;
3.to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, rely on those proved to be true in mitigation of the plaintiff's damages: partial justification; and
4.to the extent the defendant does not prove the substantial truth of the defamatory imputations of which the plaintiff complains, the defendant can prove the matter complained of carries contextual imputations that are substantially true, and that by reason of the truth of the contextual imputations, the plaintiff's reputation is not further harmed by the plaintiff's pleaded defamatory imputations: s 26.
[42] Besser v Kermode [86].

In this case, the defendant relies on all four of these courses of action, subject to the justification and s 25 defence being limited to only four of the plaintiff's pleaded imputations.
The decision in Besser v Kermode was delivered prior to the amendment of the Defamation Act 2005 (NSW) that removed the requirement that contextual truth imputations be 'in addition' to the plaintiff's imputations.

Imputations: specific and general charges

In Drummoyne Municipal Council v Australian Broadcasting Corporation, Gleeson CJ (when sitting on the NSW Court of Appeal) made the following observations regarding the word 'imputation' itself, and also the need for specificity in the formulation of an imputation:[43]
In Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 91, Griffith CJ observed that 'impute' is an ordinary English word, and is properly used with reference to any act or condition asserted of or attributed to a person. His Honour went on to say that in the section of the Criminal Code Act 1899 (Qld) which he was considering the word 'imputation' meant the matter (act or condition) imputed, and that if the act or condition imputed were such that the plaintiff's reputation was likely to be injured by it, or the plaintiff was likely to be injured in his profession or trade, the law called it defamatory. In Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1, a case concerning the Defamation Act 1958, Gibbs J said (at 10): '… To make an imputation concerning a person is to attribute some act or condition to him, or in other words, simply to make a statement concerning him'.
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.
…
As I have indicated, the question is ordinarily one to be resolved by considerations of practical justice in the circumstances of a particular case, rather than considerations of the possibility of linguistic refinement. I agree with the test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd E (1988) 12 NSWLR 148 at 155 where his Honour said:
'… The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.'
[43] Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 136 ‑ 138.
One of the imputations pleaded in Drummoyne was that the plaintiff was a corrupt municipal council. Gleeson CJ made the following observations regarding allegations of corruption:[44]
Allegations of corruption have, in recent years, provided a fruitful source of controversy in this area of defamation law and practice. As Hunt J pointed out in Whelan and elsewhere, the word 'corrupt' can have significantly different shades of meaning. This does not make it unusual, but, because it is a word the use of which is apt to give rise to allegations of defamation, it seems to have come in for a high degree of forensic exegesis. Depending upon the context, for example, it can mean that a person takes bribes, or that he abuses power entrusted to him, or that he improperly obtains private benefits from a public position.
[44] Drummoyne (138).
McCallum J explained in Hyndes v Nationwide News Pty Limited that it is possible for words to convey both an act and, separately, a condition related to that act.[45] For example, in Hyndes, one of the plaintiff's imputations was that the plaintiff had knowingly assisted drug dealers by helping to lend them money. An imputation of that nature attributes certain acts to the plaintiff. The defendant in Hyndes sought to plead a contextual imputation that the plaintiff was willing to lend money to persons whom he believed to be drug dealers. Thus, the contextual imputation was as to a condition attributed to the plaintiff, namely a willingness to act in a reprehensible way. McCallum J held that the contextual imputation was capable of arising from the publication, however it was not an 'additional' imputation for the purposes of s 26. This was because the condition was 'necessarily implicit in the act identified in the plaintiff's imputations' and thus was not, in truth, an additional imputation.[46]
[45] Hyndes v Nationwide News Pty Limited [2011] NSWSC 633[33] ‑ [34].
[46] Hyndes [35] - [36].
It is also possible for words to impute an act or acts of the plaintiff, and separately, a general charge attributing a condition to the plaintiff.
In Abou‑Lokmeh v Harbour Radio Pty Ltd, McColl JA observed that:[47]
… the question whether a particular charge of wrongdoing carries a general charge 'may depend on the context in which the words are used' and … 'the gravity of the misconduct imputed in the particular charge'.
(footnote omitted)
[47] Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 [39].
One of the authorities which her Honour cited in support of this proposition was Nationwide News Pty Ltd v Warton. In Warton, Heydon JA (with whom the other members of the NSW Court of Appeal agreed) gave the following exposition of a particular charge of wrongdoing that is also capable of carrying a 'general charge':[48]
The article does not suggest that the plaintiff's act is other than an isolated act of dishonesty, but it does suggest that it is a most serious act of dishonesty. It involved gambling with one man's health (that of Chavez), exploiting another man's reputation (that of Tszyu), doing it only for money, doing it in a way which was attracting great criticism in America, both among the public and the authorities which regulate boxing, and doing it in a manner justifying the arrest of the plaintiff. While a person can do a dishonest thing without being thought a dishonest person, some things are so dishonest that one can infer that only a dishonest person would do them. The activities attributed to the plaintiff in the article are so extensive, serious and risky that it is open to ordinary reasonable readers to infer that only a dishonest person would have done them.
[48] Nationwide News Pty Ltd v Warton [2002] NSWCA 377 [61].
In Cornwell v Channel Seven Sydney Pty Ltd,[49] Gleeson JA (with whom the other members of the NSW Court of Appeal agreed) explained that:
1.in some cases a single instance of misconduct will be so serious that it may, at the same time, convey a general charge against the plaintiff;[50]
2.in some cases a single instance of misconduct will not be so serious as to convey a general charge at the same time;[51]
3.in other cases the collection of instances of misconduct in the matter complained of will be capable of conveying a general imputation in addition to specific imputations.[52]
[49] Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255.
[50] Cornwell [60].
[51] Cornwell [61].
[52] Cornwell [62].
Cornwell was an appeal from a decision of the primary judge refusing to strike out a contextual imputation that Mr Cornwell was dishonest. The primary judge held that the matter complained of attributed to Mr Cornwell 'such a series of individual acts of dishonesty as to give rise at the same time to the general imputation that [Mr Cornwell] is dishonest'.[53] The Court of Appeal found that it was at least arguable that the jury could reasonably find that the contextual imputation of dishonesty was conveyed in addition to the imputations of which Mr Cornwell complained.[54]
[53] Cornwell [27].
[54] Cornwell [66].
In both Warton and Cornwell, the 'general charge' was that the plaintiff had a particular condition, namely that the plaintiff was dishonest. The general charge was not a general charge of prior conduct.
The defendant's counsel in his written submissions relied on Fairfax Media Publications v Zeccola[55] as support for the proposition that:[56]
If the matter complained of conveys two imputations at the same time, one general and one specific, where the plaintiff pleads the more specific imputation the defendant may plead the more general and seek to prove it.
[55] Fairfax Media Publications v Zeccola [49].
[56] Defendant's Outline of Submissions dated 4 June 2024, par 11.
Paragraph 49 of Zeccola refers to a contextual imputation pleaded 'in general terms in the sense permitted by Maisel v Financial Times Ltd'.[57] In Maisel, the defendants alleged that the words complained of did not bear the meaning attributed to them by the plaintiff. In the alternative, the defendants pleaded a general imputation as follows:[58]
… the defendants say that if the said words mean that the plaintiff was of a character and reputation such that he was likely to have misappropriated funds of companies with which he was connected and that he would have misappropriated the funds of the Oil Trust of Galicia Limited if he had had the opportunity and that he was an unfit person to be a director of the said or any company the said words are, in the meaning that the plaintiff was of a character and reputation such that he was likely to have misappropriated funds of companies with which he was connected and that he would have misappropriated the funds of the Oil Trust of Galicia Limited if he had had the opportunity and that he was an unfit person to be a director of the said or any company, true in substance and in fact.
[57] Maisel v Financial Times Limited [1915] 3 KB 336; (1915) 113 LT 772.
[58] Maisel (338).
This imputation was a general charge directed to the plaintiff's character and reputation.[59] Thus, the imputation was directed to the plaintiff having a particular general condition, as was the case in Warton and Cornwell. The alternative imputation in Maisel was not that the plaintiff had engaged in a general course of conduct.

Further observations on the need for specificity

[59] Maisel (339 ‑ 340) (Lord Cozens-Hardy MR), (341) (Pickford LJ) and (343) (Warrington LJ).

The parties proceeded on the assumption that the question of whether the alternative imputations were sufficiently precise was the same in respect of the Hore‑Lacy defence and the contextual imputations defence. I will proceed on that assumption.[60]
[60] See Setka [288] ‑ [290], which considers the possibility that different tests of specificity might apply.
An imputation pleaded by a defendant must satisfy the same pleading rules that apply to a plaintiff's imputations.[61] These rules include that the imputation must express the precise act or condition asserted of or attributed to the plaintiff and must represent the final distillation of the alleged defamatory meaning. This latter requirement has also been expressed as a requirement that the imputation capture the true essence of the 'sting' of the publication.[62]

Principles in relation to striking out imputations

[61] Buckeridge v Walter [2007] WASCA 19 [16] (McLure JA), [26] (Buss JA agreeing).

[62] Maher v Nationwide News Pty Ltd [2013] WASC 254 [27].

Consistently with the general principles regarding strike out applications, imputations in defamation actions will only be struck out on the ground that the words complained of are incapable of supporting them if the contention is so obviously unfounded that it cannot possibly succeed or is manifestly groundless.[63] This test has been described in NSW as whether the imputation is 'unarguably bad'.[64] The question of whether the pleaded meaning is incapable of being conveyed from the matter complained of is determined by reference to the ordinary reasonable viewer or listener.[65]
[63] Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270 [30] (Steytler J) (Malcolm CJ and Murray J agreeing).
[64] Younan v Nationwide News Pty Ltd [2013] NCSWCA 335 [20] (Macfarlan JA) (Bathurst CJ and Beazley JA agreeing).
[65] See Rayney v Pan MacMillan Australia Pty Ltd [2014] WASC 129 [28].
Further, as I have explained at [78] above, the imputation must capture the true essence of the 'sting' of the publication. A failure to satisfy this criterion will render an imputation vulnerable to being struck out on the ground that it is legally embarrassing.[66] This is because such an imputation will conceal or obscure the real questions in controversy.

Disposition regarding alternative imputations

[66] Maher [28].

The plaintiff's principal contention is that the alternative imputations are too broad. The plaintiff submits that the alternative imputations:[67]
[F]ail to capture the precise sting of the publications. They are also bad in form. The too‑broad wording is prejudicial; it allows the defendant to agitate 'false issues' unrelated to the Port Hedland housing development or to the actual words published.
[67] Plaintiff's Outline of Submissions dated 20 May 2024, par 21.
The defendant contends that the alternative imputations identify more or less the same sting as the first matter complained of, but by reference to more general conduct. The defendant contends that a meaning which attributes more general conduct to the plaintiff is available from the first matter complained of. The defendant points specifically to the reference in the first matter complained of to 'Pilbara Airlines and the hundreds of millions of dollars the plaintiff claims to have secured through his Aboriginal corporation to purchase land and business'.[68]
[68] Defendant's Outline of Submissions dated 4 June 2024, pars 14 ‑ 15.
In respect of the second matter complained of, the defendant points to the caption for the video stating that it is about the mayor's 'new business proposal' and that the video starts with the defendant saying:
I'm going to talk about another scheme that our mayor Peter Carter is up to at the moment …
The defendant also points to the matters at pars 28 and 29 of the second matter complained of, which concern significant business ventures being promoted by the plaintiff in respect of Pilbara Airlines and an Indigenous corporation.
A principal difficulty with the defendant's alternative imputations is that they convey the plaintiff has engaged in generalised conduct which goes beyond the specific examples of the plaintiff's conduct given by the defendant in each of the first and second matters complained of.
The alternative imputations do not assert specific conduct engaged in by the plaintiff. Rather, they assert general conduct of the plaintiff that has the characterisation of impropriety reflected by each imputation. Thus, the relevant qualifier for the conduct is that it meets the specified characterisation. For example, alternative imputation 1 would capture a $50,000 business proposal where the plaintiff had knowingly falsely claimed to have raised tens of thousands of dollars. It would also capture a $500 million business proposal where the plaintiff had knowingly falsely claimed to have raised hundreds of millions of dollars. These are, of course, hypothetical examples, but they illustrate the sheer breadth of conduct caught by the imputation. The examples also illustrate that the imputation captures conduct irrespective of whether the matters complained of, either directly or inferentially, referred to that conduct.
The words spoken by the defendant in both matters complained of are directed to his strongly stated concerns regarding the large‑scale property development of 4,000 new homes (proposed large-scale development). Further, the defendant sought to reinforce his concerns by reference to two previous large‑scale business proposals said to involve the plaintiff, those being in respect of Pilbara Airlines and an Indigenous corporation.
In the first matter complained of, the defendant refers to stories and comments he had written 'about Pilbara Airlines and the hundreds of millions of dollars [the plaintiff] claims to have secured through his Aboriginal corporation to purchase land and business'.[69]
[69] Paragraph 6 of Annexure B to the Statement of Claim.
The defendant then says he has been informed that the plaintiff is promoting the proposed large‑scale development, which he describes as a $4 billion deal, and says:[70]
… [the plaintiff] has informed the investor group that he has secured local, state and federal funding towards the development. Does that sound familiar to you?
[70] Paragraph 8 of Annexure B to the Statement of Claim.
He then says, irrespective of what land is the subject of the Local Planning Scheme amendment that was before the council:[71]
… that doesn't separate the financial interest that exists between [the plaintiff] and any development application that comes before the Town of Port Hedland Council in an agenda item because it is a fact that he's acting as a developer and soliciting funds from investors for the development proposal.
[71] Paragraph 16 of Annexure B to the Statement of Claim.
The defendant's counsel submitted that the passage set out at [82] above could be understood as if there was a comma after 'Airlines', such that the references to Pilbara Airlines and the hundreds of millions of dollars are references to separate matters.[72] The defendant's counsel did not suggest such an interpretation arose from how the defendant spoke the words.
[72] ts 74.
The defendant's counsel also suggested that the defendant's previously stated concerns regarding Pilbara Airlines could arise from notorious facts known to the people at the council meeting.[73] However, the defence is not pleaded in that way. That being so, on the defendant's suggested interpretation that 'Pilbara Airlines' and 'the hundreds of millions of dollars' might be separate matters, any impropriety regarding Pilbara Airlines would have to be discerned elsewhere in the first matter complained of. In the passage at [89] above, the defendant refers to the plaintiff having 'informed the investor group that he has secured local, state and federal funding towards the development' and then says 'Does that sound familiar to you?'. This suggests the defendant's criticisms of the proposed large‑scale development were of substantially the same gravity and type as his criticisms of the plaintiff's conduct in respect of Pilbara Airlines.
[73] ts 74 ‑ ts 75.
In the second matter complained of, the defendant addresses the proposed large‑scale development in some detail for the apparent purpose of demonstrating that it is not credible. The defendant then says:
There is without a doubt, a serious financial conflict of interest happening that is being covered up by the executive and the Council because the minutes of the meeting are being edited to remove the questions I've asked, and the most important outcome here is to make sure answers are provided to the people of Hedland about the shady business dealings [the plaintiff] is promoting under the pretext that the Local, State and Federal Government is funding and backing.
The defendant describes the proposed large‑scale development as 'another scam or Ponzi scheme' in the making.
He describes this as an 'ongoing pattern of behaviour that mirrors the Pilbara Airlines fantasy'.[74] He describes the proposed Pilbara Airlines venture as one 'that was going to employ hundreds of people and they were going to spend hundreds of millions of dollars in planes and buildings at the South Hedland airport'.[75] The defendant also refers to another proposal, where the defendant said the plaintiff claimed to have government funding worth hundreds of millions of dollars and the plaintiff:[76]
… was claiming to be Aboriginal and using an Indigenous corporation as a front to convince people of its legitimacy as well as claiming to have secured the finance from the Government under the umbrella of the Aboriginal corporation to purchase land and business worth over 300 million.
[74] Paragraph 28 of Annexure C to the Statement of Claim.
[75] Paragraph 28 of Annexure C to the Statement of Claim.
[76] Paragraph 29 of Annexure C to the Statement of Claim.

Overall, all of the specific business proposals concerning the plaintiff that were referred to by the defendant in the first and second matters complained of were of a very large scale.
I am satisfied that the matters complained of are not capable of giving rise to imputations that the plaintiff engaged in conduct in respect of other business activities beyond those identified by the defendant in the publications. In this respect, it needs to be remembered that the alternative imputations put forward by the defendant do not assert a general charge attributing a general condition to the plaintiff. Rather, they assert general conduct of the plaintiff having the characterisation of impropriety reflected by each imputation.
As such, the alternative imputations go beyond the instances of conduct referred to by the defendant in the matters complained of. The alternative imputations also have the capacity to capture conduct that is not of the same magnitude, or moral turpitude, as that referred to by the defendant in the matters complained of. In my view, such broad meanings as conveyed by the alternative imputations are not capable of arising from each of the publications.
Further, in respect of alternative imputations 2 and 3, the defendant's statements in the publications as to non‑disclosure and inappropriate use of the mayoral office are directed to his assertions that the plaintiff was deliberately concealing his personal financial interest in the proposed large‑scale development. The defendant's statements in the publications are not capable of being understood as conveying that the plaintiff had engaged in a general course of non‑disclosure, or a general course of corruption, as is suggested by alternative imputations 2 and 3.
Alternative imputation 4 is alleged to arise only from the second matter complained of. The defendant seeks to prove the truth of alternative imputation 4 by relying on matters that occurred at the 31 May 2023 council meeting and also at earlier council meetings. Thus, the meaning the defendant seeks to ascribe to alternative imputation 4 is that the plaintiff censored questions relating to his conduct at numerous meetings.
The second matter complained of was published after the council meeting held on 31 May 2023, and was directed to what happened at that meeting. That much is made clear by the written caption accompanying the video:
This video is about the Mayor's new business proposal he is selling to investors in Vietnam, I asked questions at the 31 May 2023 council meeting, watch and see what happened.
The defendant's comments in the second matter complained of concerning how the plaintiff handled questions about his (the plaintiff's) conduct were clearly directed to the plaintiff's conduct at the 31 May 2023 meeting. The words complained of are not capable of giving rise to an imputation that the plaintiff censored questions relating to his conduct at earlier meetings.
Further, each of the pleaded imputations are (legally) embarrassing in their generality.

Alternative imputation 1

Alternative imputation 1 is that the plaintiff engaged in fraud by claiming to others to have secured government funding for his business purposes in circumstances where he knew he had not secured the funding.
At its base level, fraud is engaging in wrongful deception intended to result in financial or personal gain. The first alternative imputation does not identify to whom the plaintiff made the false claim that he had secured government funding, or whether he was seeking to secure any benefit from them. Accordingly, the imputation is capable of capturing conduct that is not fraudulent. It is therefore evasive.

Alternative imputation 2

Alternative imputation 2 is that the plaintiff was obligated to make public disclosures of his interests but deliberately failed to do so.
This imputation is of such a general nature that it is not possible to discern what type of conduct is being imputed to the plaintiff, nor is it possible to discern the gravity of that conduct. The imputation states that the plaintiff was obligated to make 'public' disclosures, however it does not identify the capacity in which those obligations arose, nor does it identify to whom the disclosures ought to have been made. The imputation also refers to the plaintiff's 'interests' without identifying the nature of those interests, specifically whether they were personal, financial, or of some other type.

Alternative imputation 3

Alternative imputation 3 is that the plaintiff is corruptly using his position as Mayor to promote his personal business interests.
This imputation asserts corruption in a very general sense which could cover a vast array of behaviours and degrees of impropriety.

Alternative imputation 4

Alternative imputation 4 is that the plaintiff used his position as Mayor of the Town of Port Hedland to censor questions relating to his conduct at a council meeting.
Alternative imputation 4 is expressed in terms that the plaintiff censored questions relating to his conduct at 'a' council meeting. The word 'a' conveys the singular, not the plural. In my view, it is evasive for the defence to use the singular in the structure of the imputation, yet seek to prove the truth of the imputation by reference to several meetings.
For these reasons, the alternative imputations should be struck out.

Contextual truth

As I understand it, the alternative imputations are relied on for the contextual truth defence pleaded at par 18. Accordingly, par 18 of the defence should also be struck out.
Further in respect of par 18 of the defence, the contextual truth defence relies in part upon the alleged truth of the imputations pleaded by the plaintiff. The defendant's counsel correctly conceded during oral argument that the contextual truth defence can only rely on additional imputations to those pleaded by the plaintiff. For this additional reason, par 18 of the defence should be struck out.

Additional matters raised

Given that I have found that the alternative imputations are not capable of arising and are also embarrassing in their generality, it is not necessary, nor is it appropriate, to assess whether they are arguably permissible variations under a Hore‑Lacy defence.
It is also not necessary, nor is it appropriate, to assess whether s 26(b) is arguably engaged. Section 26(b) requires the defendant to prove that the plaintiff's defamatory imputations do not further harm the plaintiff's reputation because of the substantial truth of the contextual imputations. The task of determining whether s 26(b) is arguably engaged should not be undertaken in respect of imputations that I have found are not capable of arising and are embarrassing in their generality.
The alternative imputations should be struck out. The parties will need to consider what additional paragraphs of the defence also need to be struck out as a consequence.
I will give the defendant liberty to replead the alternative imputations having regard to these reasons. In saying that, I am not suggesting that there are, or are not, alternative imputations available for the purposes of a defence. However, I think the defendant should be given one further opportunity to formulate his position in that respect.

Qualified privilege

The defendant relies on the defence of qualified privilege at common law, and under the Defamation Act, in respect of both publications.[77]
[77] Paragraphs 19 and 20 of the Defence.
Paragraph 19.4 of the defence alleges that the defendant's conduct in publishing the first matter complained of was reasonable in the circumstances. A number of matters are particularised in support of that plea. The particulars to par 19.4 are also relied upon in support of the plea that the defendant's conduct in publishing the second matter complained of was reasonable in the circumstances.[78]
[78] Paragraph 20.4 particular (i) of the Defence.
Paragraph 19.4 particular (vii) asserts that the statements made by the defendant in the first matter complained of were made in the circumstances pleaded in pars 26 to 96 of the defence which were understood by the defendant to be true.
The plaintiff does not suggest that, in this case, the question of reasonableness at common law is materially different to that provided for by s 30(3) of the Defamation Act. I will proceed on that premise.
The plaintiff contends that the defence of qualified privilege is concerned with the reasonableness of the publisher's conduct. The plaintiff also contends that the objective truth of what was published is not relevant to the defence of qualified privilege, whether statutory or common law.[79] The plaintiff says it follows that the defendant's subjective belief as pleaded is not relevant and raises a false issue.
[79] Rayney v The State of Western Australia [No 2] [2009] WASC 133 [21] - [23].
The plaintiff is also concerned that there is potential prejudice in having to scrutinise 71 paragraphs of the defence in an attempt to ascertain their potential relevance to each qualified privilege defence.
The defendant points to Lower Murray Urban and Rural Water Corporation v Di Masi, where the Victorian Court of Appeal in a joint judgment stated that: [80]
… we are unpersuaded that s 30(3) either alone, or in combination with s 30(4), precludes a court from considering factors relevant to the subjective intent or purpose of the publisher.
[80] Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 [87].
In reaching this conclusion, the Victorian Court of Appeal endorsed the reasoning of the primary judge as follows:[81]
In my view, it is impossible to divorce subjective considerations from a proper determination as to whether the conduct of the defendant, in publishing the letter, was reasonable in the circumstances. Subparagraphs (g) and (i) of s 30(3) each necessarily involve a consideration of matters, such as the knowledge of the defendant of the facts which are alleged in the matter published by it. Subparagraph (g) concerns the sources of the information in the matter published, and the integrity of those sources. It would be unreal - and probably unfair - to confine the consideration of the integrity of a journalist's sources to objective considerations; rather, clearly, it would seem that the author of defamatory material must, in addressing that point, be entitled to adduce evidence as to his or her estimate and understanding of the integrity of the sources. Subparagraph (i) concerns steps taken by the defendant to verify the information in the matter published. The adequacy of the steps, taken by a defendant to verify the information in the matter published, must depend on the knowledge, by that defendant, of the information contained in the matter published, and the knowledge, by the defendant, of facts which verify or substantiate the information contained in the matter published. An assessment of the sufficiency of the steps, taken by a defendant to verify the information contained in the matter published, must depend upon the state of knowledge of the defendant of the information contained in the matter published, and on the factual material in the possession of the defendant, which supports (or contradicts) that information.
(emphasis added)
[81] Di Masi [80] ‑ [81].
Respectfully, there is much force in this analysis. Without wishing to oversimplify the issue, the analysis reflects common sense. In any event, I ought to follow Di Masi. It is an appellate court decision concerning what was at the time a near identical provision of the Defamation Act 2005 (Vic).[82]
[82] The Defamation Act 2005 (Vic) had the word 'and' at the end of pars (a) ‑ (i), whereas the Defamation Act only has the word 'and' at the end of paragraph (i).
Even though I accept the defendant's proposition that his beliefs at the time of publication may be relevant to the question of reasonableness, there are a number of difficulties with the pleading.
First, some of the matters referred to in pars 26 to 96 of the defence occurred after the matters complained of, so therefore could not constitute a circumstance that existed at the time of publication.
Second, some of the matters alleged set out with great precision the terms of legislation and regulations. The defendant's counsel conceded that the defendant would not have known the precise detail of such matters.
Accordingly, the plea needs to be reformulated in any event.
The defendant's written submissions explained the purpose for the plea as follows:[83]
Paragraph 19.4 particular (vii) of the defence is directed to Mr Blanco's subjective beliefs that his concerns about criticism of Mr Carter as Mayor of the town of Port Hedland were warranted.
[83] Defendant's Outline of Submissions dated 4 June 2024, par 25.
During argument, I raised with the defendant's counsel that this purpose did not accord with the passage from the decision in Di Masi relied on by the defendant, which was directed to the subjective intent or purpose of the publisher. Ultimately, the defendant's counsel said that for the purposes of demonstrating that the publication of the matters complained of was reasonable in the circumstances, the defendant does not rely on his subjective intent or purpose.[84]
[84] ts 90.
It seems to me that there are a number of possible ways in which the defendant's state of mind might be relevant to an assessment of whether a publication was reasonable in the circumstances. So, for example, the defendant's assessment of the veracity of the matters alleged in the publication and the defendant's intent or purpose in making the publication. However, the defendant's counsel eschewed reliance on the defendant's intent and purpose. Further, the defendant pleads that he understood the circumstances pleaded in pars 26 to 96 of the defence to be true. A number of those circumstances are not referable, whether specifically or generally, to the matters complained of.
In the end, it is not clear to me from the defence and the defendant's written submissions precisely how the defendant suggests his state of mind is relevant to the question of reasonableness. Ordinarily, this would not be of such concern as to warrant striking out one particular. However, that particular itself is directed to the defendant's understanding that a vast array of matters are true. Further, the plea needs to be amended to take account of the matters addressed at [129] and [130] above in any event.
Accordingly in my view, par 19.4 particular (vii) should be struck out on the ground that it does not state the defendant's case with reasonable particularity. The defendant will have to leave to replead. The amended defence will need to identify how the defendant's state of mind is relied on in support of the allegation that the publication of the matters complained of was reasonable.

Fair comment/honest opinion

The defendant also pleads defences of fair comment at common law and honest opinion pursuant to s 31 of the Defamation Act.
The plaintiff's principal complaint in respect of these defences is that the matters complained of are not arguably capable of being regarded as expressions of opinion or comment. The plaintiff submits that the language used by the defendant was 'declarative'.
An opinion has been described as something which can be characterised as a conclusion, a judgment or observation of some kind.[85] A comment has been described as 'something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observation, etc.'.[86]
[85] Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 [128].
[86] Clarke v Norton [1910] VLR 494, 499.
In Channel Seven Adelaide v Manock,[87] Gummow, Hayne and Heydon JJ said in respect of whether particular statements can be characterised as comment that:
The question of construction or characterisation turns on whether the ordinary reasonable 'recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered' - not 'an exceptionally subtle' recipient, or one bringing to the task of 'interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at'.
(citations omitted)
[87] Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 [36].
Thus, the assessment is undertaken by reference to the understanding of a hypothetical ordinary, reasonable reader.[88]

Opinion under s 31

[88] See Green v Fairfax Media Publications Pty Ltd [No 4] [2021] WASC 474 [144].

Section 31 requires that the matter is an expression of opinion, not that the imputation or imputations conveyed are expressions of opinion.
In Stead v Fairfax Media Publications Pty Ltd, Lee J observed in respect of the defence of honest opinion under s 31:[89]
… Although the significance of the defamatory matter lies in its meaning, the pleaded meanings, although relevant, cannot be determinative of the necessarily contextual characterisation inquiry as to whether a statement is opinion. Put another way, although the pleaded meaning is not to be the sole focus, given that the critical question is whether the defamatory sense of the matter was conveyed as an expression of opinion rather than an assertion of fact, it is necessary that the inquiry is conducted, as McCallum J said in Feldman (at 66,584 [43]) 'through the lens of the defamatory meaning held to have been conveyed'.
It seems to me that if one is faithful to the text of the Act, the correct approach can be stated quite simply: to determine whether the matter would have been understood by the ordinary reasonable reader to be an expression of opinion rather than a statement of fact; and although this contextual inquiry necessarily requires consideration of the meanings found to be conveyed, it is not constrained or dictated by their terms so as to transform the inquiry into a consideration as to how each imputation would be understood.

Fair comment at common law

[89] Stead v Fairfax Media Publications Pty Ltd [130] ‑ [131].

In respect of the defence of fair comment at common law, in Manock, Gummow, Hayne and Heydon JJ observed that:[90]
… the defendant's contention 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. An initial question will be whether the ordinary reasonable viewer would have understood that the meaning found to have been conveyed was conveyed as comment. Another question would be whether that meaning was objectively fair. Another would be whether it was based on true facts. Each of the questions must be answered by treating the comment as being the 28 words in the meaning which the court found. If the defendant's contention were not wrong, it would be open to the defendant to contend that the promotion bore some meaning other than the defamatory meaning which the trial judge had already found, which is impossible. What the Privy Council said in Lloyd v David Syme & Co Ltd, in a case on the Defamation Act 1974 (NSW), is equally applicable to the common law:
'Comment must have a meaning, and ex hypothesi the [trier of fact is] proceeding on the footing that its meaning is defamatory in the sense of the pleaded imputations which have been found established.'
Similarly, in Pervan's case the majority said:
'[A]t common law ... it is for the jury to decide whether what has been published is a statement of fact or an expression of opinion. It is only if the imputation is reasonably capable of being regarded only as fact or only as comment that the trial judge may take the question away from the jury.'
Thus it is 'the imputation' which must be 'reasonably capable of being regarded ... only as comment'.
(footnotes omitted)

Differences in approach

[90] Manock [83].

There is therefore a difference in approach between a defence under s 31 of the Defamation Act and a defence of fair comment at common law.
Halley J described this difference in Callan v Chawk as follows:[91]
As White J observed in Dutton v Bazzi [2021] FCA 1474 at [70] (reversed on appeal but not on this aspect), matter as defined in s 4 of the Act, suggests that the defamatory matter in s 31 of the Act is to be construed as a reference to the medium by which the defamatory imputation is conveyed rather than the defamatory imputation itself. In contrast, the common law defence of fair comment on a matter of public interest focusses on the defamatory meaning found to have been conveyed: Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at [83] and [85] (Gummow, Hayne and Heydon JJ).
(original emphasis)
[91] Callan v Chawk [2023] FCA 898 [125]; see also Dutton v Bazzi [2021] FCA 1474 [70] - [71], O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289.
Whether the different approaches give rise to a different result will depend on the circumstances and content of the publication under consideration. The parties in this case did not suggest in argument that there was any material difference for the purposes of the strike out application and I will proceed on that premise.

Basis for the comment/opinion

At common law the defence of fair comment requires that the facts on which a comment is based be expressly stated, referred to or notorious. It is not sufficient that the subject matter or substratum of fact of the comment is indicated.[92]
[92] Manock [47] and [72]. See also Marshall v Smith [2013] WASC 451 [36].
The defence of honest opinion must be based on 'proper material'.[93] It is not necessary in these reasons to address what constitutes 'proper material'. The defence relies on the same matters for the fair comment defence, and the s 31 defence, and does not seek to draw out any distinction between the two. In that respect, the defendant's counsel approached the argument on the basis that proper material must be stated within the publication.[94]

Initial observation regarding comment and opinion

[93] Defamation Act, s 31.

[94] ts 97.

That statements are made in a definitive way does not necessarily mean they are statements of fact, as opposed to statements of opinion. Matters that are strongly expressed can still be regarded by the ordinary reasonable person as matters of opinion. The ordinary reasonable person recognises that human nature is such that people can, and often do, hold strong opinions.
The question of whether a defamatory matter constitutes an opinion, or a defamatory imputation constitutes a comment, is quintessentially a question for the trier of fact, whether that be a judge or jury.
This is especially so where the matters complained of constitute spoken words delivered in an audio‑visual format. In that circumstance, matters such as tone, emphasis on particular words, hesitation in speaking and displays of body language are all capable of affecting an assessment as to whether the spoken words are opinion or comment. The overall impression of the combined visual and verbal publication may well be decisive in making this assessment.
As Leeming JA observed in Massoud v Nationwide News Pty Ltd:[95]
… The mode of delivery of any publication which is not written will always influence what it conveys, and sometimes the non‑verbal influence may be decisive. As one work has observed, '[t]one of voice and facial expression will sometimes neutralize words which would, if read in print, convey a defamatory meaning': M Collins, The Law of Defamation and the Internet (2nd ed Oxford University Press, 2005), p 100. Similarly, something as nuanced as whether what is published is a statement of fact or an expression of opinion … will be affected, sometimes decisively, by the publication's non‑verbal aspects.
[95] Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Pty Ltd [2022] NSWCA 150 [180].
The parties' submissions did not address any aspect of the publications other than the words spoken. This makes it very difficult to assess whether the matters complained of are capable of being regarded as opinion or comment. While the plaintiff's counsel suggested I could view the matters complained of, there is little utility in doing so without the benefit of submissions directed to such matters.

Disposition on honest opinion and fair comment

With both the s 31 defence and the defence of fair comment, it is necessary to consider the plaintiff's pleaded imputations. In summary, those imputations are as follows.
The first matter complained of, in its natural and ordinary meaning, carried the following imputations:
1.the plaintiff had engaged in fraud as specified at pars 9 a and 9 b of the statement of claim;
2.the plaintiff had deliberately not disclosed a particular conflict of interest at par 9 c;
3.the plaintiff is corruptly using his position as Mayor as specified at pars 9 d and 9 e;
4.as an alternative to the primary meaning pleaded at par 9 e, the plaintiff is knowingly making improper use of his position as Mayor as specified at par 9 e (i).

Further by reason of the pleaded extrinsic facts, the first matter complained of carried the following imputations:
1.the imputations set out at [156] above;
2.the plaintiff is corruptly using his position as Mayor as specified at par 10 a;
3.as an alternative to the primary meaning pleaded at par 10 a, the plaintiff is knowingly making improper use of his position as Mayor as specified at par 10 b (i).
The second matter complained of, in its natural and ordinary meaning, carried the following imputations:
1.the plaintiff had engaged in fraud as specified at pars 12 a and 12 b of the statement of claim;
2.the plaintiff is operating the Ponzi scheme specified at par 12 c;
3.the plaintiff is corruptly using his position as Mayor as specified at pars 12 d and 12 e;
4.as an alternative to the primary meaning pleaded at par 12 d, the plaintiff is knowingly making improper use of his position as Mayor as specified at par 12 d (i);
5.as an alternative to the primary meaning pleaded at par 12 e, the plaintiff is knowingly improperly using his position as Mayor as specified at par 12 e (i).
The imputations as summarised at [156] - [158] above are all directed to the proposed large‑scale development.
There are limitations on how the argument was presented regarding the fair comment and s 31 defences. I say that meaning no criticism of counsel, but more as a reflection of my thinking after evaluating the arguments presented.
Little attention was directed in argument to the plaintiff's imputations for the purposes of assessing whether the comment or opinion underpinning the relevant defence is capable of arising. As I have explained, the imputations are of significance in assessing both defences.
Further, at least insofar as a fair comment defence is concerned, ordinarily the defence will identify the expression of comment or opinion said to arise from the matter complained of.[96] However, the expressions of opinion that are particularised in the defence do not bear any resemblance to the pleaded imputations. It seems that the particulars are, in effect, matters that the defendant relies on to sustain his contention that the matters complained of constitute comment or honest opinion.
[96] The Hon Blair J et al (eds), Bullen & Leake & Jacob's Precedent of Pleadings (17^th edition, vol 1, 2012), page 663, 37‑I12, par 4(5). See also, Soultanov v The Age Company Limited [2009] VSC 145 [9], where the comment was identified in response to a request for particulars.
On the other hand, the defendant's written submissions state:[97]
Whether the opinions arise - that is, [the plaintiff's] imputations - require consideration of the words spoken by [the defendant] and the context in which they were said, which are matters for trial.
[97] Defendant's Outline of Submissions dated 4 June 2024, par 33.
This passage seems to put the case on the basis that the plaintiff's imputations, to the extent they are found to arise, are the relevant opinion or comment.
There is also the difficulty that I have not seen nor heard the matters complained of. Nor have any submissions been made as to the impact of the manner of speech, as opposed to its content.
Having reflected on these matters, I do not consider I can properly assess whether the fair comment and s 31 defences should, or should not, be struck out on the ground advanced by the plaintiff. I therefore decline to strike out those defences at this stage.
That being said, the defendant will be given leave to replead the defence in light of my other findings. The defendant can use that opportunity to assess whether his fair comment and s 31 defences should be amended. After the amended defence has been filed, the plaintiff will be able to reassess the extent to which, if any, he seeks to renew the attack on the fair comment and s 31 defences.

Conclusion

Paragraph 16 of the defence (which pleads the alternative imputations) should be struck out, as should par 19.4 particular (vii) of the defence. The defendant will be granted leave to replead.
The striking out of the alternative imputations will necessitate other paragraphs of the defence being struck out. I will hear from the parties as to what additional paragraphs should be struck out. I will also hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SP
Associate to the Hon Justice Lemonis
3 DECEMBER 2024