Domican v Pan Macmillan Australia Pty Ltd - [2019] FCA 1384

FEDERAL COURT OF AUSTRALIA
Domican v Pan Macmillan Australia Pty Limited [2019] FCA 1384

File number: NSD 1297 of 2018

Judge: WIGNEY J

Date of judgment: 28 August 2019

Catchwords:
DEFAMATION – whether publication contained defamatory imputations – where respondents plead defence of truth under the common law – where respondents plead alternative defence of contextual truth pursuant to s 26 of the Defamation Act 2005 (NSW) – where damages, including aggravated damages, are sought

PRACTICE AND PROCEDURE – interlocutory application – application to strike out particulars of defences – whether particulars of defences should be struck out pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) – consideration of principles concerning striking out particulars of a pleading – whether it is open for a respondent to raise a common law truth defence by pleading and seeking to justify alternative imputations to the imputations pleaded by the applicant – consideration of circumstances in which a respondent in defamation proceedings can raise a common law truth defence based on alternative imputations to the imputations pleaded by the applicant – whether the alternative imputations pleaded by the respondents differ in substance from the imputations pleaded by the applicant – whether contextual imputations pleaded in the defence were too general or imprecise – consideration of principles regarding contextual imputations – whether particulars of truth pleaded are sufficient and adequate – whether the substantial truth of imputations could be made out by the particulars of truth relied on in the defences – consideration of principles regarding sufficiency and adequacy of particulars of truth in a defamation proceeding

Legislation:
Defamation Act 2005 (NSW) ss 24, 25, 26

Federal Court Rules 2011 (Cth) rr 16.21(1) and 16.21(1)(e)

Cases cited:
Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125

Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190

Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519

David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154; 90 NSWLR 79

Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172

Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341

Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; 81 NSWLR 157

Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475

Goodfellow v Fairfax Media Publication Pty Limited [2017] FCA 1152

Howden v Truth & Sportsman Ltd (1937) 58 CLR 416

McLachlan v Browne (No 7) [2018] NSWSC 1914

O’Brien v Australian Broadcasting Corporation [2017] NSWCA 338; 97 NSWLR 1

Purcell v Cruising Yacht Club of AustraliaPty Ltd [2003] NSWSC 245

Rofe v Smith’s Newspapers Ltd (1924) 225 SR (NSW) 4

Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473

Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312

Setka v Abbott (2014) 44 VR 352

Singleton v John Fairfax & Sons Ltd (unreported, Supreme Court of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCA 1384
Decision Date: 28 August 2019

CaseChat Overview and Summary

Domican v Pan Macmillan Australia Pty Ltd involved a defamation claim brought by the plaintiff, Mr Domican, against the defendants, Pan Macmillan and Mr Ibrahim. Mr Domican sought damages for defamatory statements made about him in a book published by Pan Macmillan, allegedly authored by Mr Ibrahim. The defendants raised the defences of truth and contextual truth under the Defamation Act 2005 (NSW), asserting that the statements were substantially true and contextually true, respectively. The plaintiff sought to strike out these defences and the particulars of truth provided by the defendants.

The court was required to determine whether the defences of truth and contextual truth were adequately pleaded, and whether the particulars of truth were sufficient and adequate. The court considered the principles concerning striking out particulars of a pleading, particularly whether a respondent can raise a common law truth defence based on alternative imputations to those pleaded by the applicant. The court also examined whether the contextual imputations were too general or imprecise and whether the particulars of truth were sufficient and adequate to establish the substantial truth of the imputations.

The court found that the defences of truth and contextual truth were not adequately pleaded, and that the particulars of truth were insufficient and inadequate. The court held that the particulars were incapable of establishing the first variant or alternative imputation in the defendants' truth defence and that the second alternative imputation must be struck out for other reasons. The court granted leave for the defendants to file amended defences within four weeks of the date of the judgment, and ordered that the defendants pay the plaintiff's costs of the amended interlocutory application.

The court's decision underscores the importance of properly pleading defences in defamation proceedings, particularly in relation to the defences of truth and contextual truth. The court's consideration of the principles concerning striking out particulars of a pleading and the sufficiency and adequacy of particulars of truth provides useful guidance for lawyers involved in defamation cases. The court's decision also highlights the importance of providing sufficient and adequate particulars of truth to establish the substantial truth of imputations in defamation proceedings.

Orders

Orders of the court

1. Paragraphs 7, 8 and 9 of the first respondent’s defence be struck out.

2. Paragraphs 7, 8, 9, 10 and annexure A of the second respondent’s defence be struck out.

3. The respondents be granted leave to file amended defences on or before 27 September 2019.

4. The respondents pay the applicant’s costs of the amended interlocutory application filed 14 March 2019.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It should also be observed, for more abundant caution, that the particulars are also incapable of establishing the first variant or alternative imputation in Pan Macmillan and Mr Ibrahim’s truth defence. While the particulars relating to convictions are capable of proving the second alternative imputation that Mr Domican was a violent criminal, that imputation must be struck out in any event for the reasons already given.CONCLUSION The truth and contextual truth defences as currently pleaded by both Pan Macmillan and Mr Ibrahim should be struck out. The truth defences are pleaded in paragraphs 7 and 8 of the filed defences and the contextual truth imputations are pleaded in paragraph 9 of Pan Macmillan’s defence and paragraphs 9 and 10 of Mr Ibrahim’s defence. The particulars of truth that have been provided by Pan Macmillan and Mr Ibrahim should also be struck out. While the amended interlocutory application did not seek to strike out all the particulars in the filed defences, Pan Macmillan and Mr Ibrahim ultimately provided amended particulars of truth. The strike-out application proceeded on the basis of the amended particulars. While no specific complaint was made concerning the particulars of Mr Domican’s convictions, standing alone those particulars are incapable of establishing the substantial truth of the pleaded truth or contextual truth imputations. Mr Domican did not contend that Pan Macmillan and Mr Ibrahim should not be given leave to replead those parts of the defences which are struck out. While some of the defects or deficiencies in the existing truth and contextual truth defences have been found to be fairly fundamental, it nevertheless may be that Pan Macmillan and Mr Ibrahim will be able to reformulate the alternative or contextual imputations and thereby remedy some of those deficiencies. The reformulated second contextual imputation postulated during the hearing may remedy the current defect in that imputation. The same can be said in relation to the existing particulars of truth, though it may be, having regard to the evidence apparently available to Pan Macmillan and Mr Ibrahim, that the deficiencies in some of the particulars may not be able to be remedied. In any event, it would, in all the circumstances, be appropriate to give Pan Macmillan a further opportunity to finalise their defences. Leave should accordingly be granted to Pan Macmillan and Mr Ibrahim to file any amended defences within four weeks of the date of this judgment. Pan Macmillan and Mr Ibrahim should pay the costs of the amended interlocutory application.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 1297 of 2018
Judge:	WIGNEY J
Date of judgment:	28 August 2019
Catchwords:	DEFAMATION – whether publication contained defamatory imputations – where respondents plead defence of truth under the common law – where respondents plead alternative defence of contextual truth pursuant to s 26 of the Defamation Act 2005 (NSW) – where damages, including aggravated damages, are sought PRACTICE AND PROCEDURE – interlocutory application – application to strike out particulars of defences – whether particulars of defences should be struck out pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) – consideration of principles concerning striking out particulars of a pleading – whether it is open for a respondent to raise a common law truth defence by pleading and seeking to justify alternative imputations to the imputations pleaded by the applicant – consideration of circumstances in which a respondent in defamation proceedings can raise a common law truth defence based on alternative imputations to the imputations pleaded by the applicant – whether the alternative imputations pleaded by the respondents differ in substance from the imputations pleaded by the applicant – whether contextual imputations pleaded in the defence were too general or imprecise – consideration of principles regarding contextual imputations – whether particulars of truth pleaded are sufficient and adequate – whether the substantial truth of imputations could be made out by the particulars of truth relied on in the defences – consideration of principles regarding sufficiency and adequacy of particulars of truth in a defamation proceeding
Legislation:	Defamation Act 2005 (NSW) ss 24, 25, 26 Federal Court Rules 2011 (Cth) rr 16.21(1) and 16.21(1)(e)
Cases cited:	Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519 David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154; 90 NSWLR 79 Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341 Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; 81 NSWLR 157 Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475 Goodfellow v Fairfax Media Publication Pty Limited [2017] FCA 1152 Howden v Truth & Sportsman Ltd (1937) 58 CLR 416 McLachlan v Browne (No 7) [2018] NSWSC 1914 O’Brien v Australian Broadcasting Corporation [2017] NSWCA 338; 97 NSWLR 1 Purcell v Cruising Yacht Club of AustraliaPty Ltd [2003] NSWSC 245 Rofe v Smith’s Newspapers Ltd (1924) 225 SR (NSW) 4 Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473 Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312 Setka v Abbott (2014) 44 VR 352 Singleton v John Fairfax & Sons Ltd (unreported, Supreme Court of…