DEFAMATION – practice and procedure – application to strike out parts of statement of claim in a defamation action – whether parts of statement of claim should be struck out pursuant to r 16.21(1) Federal Court Rules 2011 (Cth) – whether impugned publication capable of conveying defamatory meanings – where matter best considered after full argument at trial – where reasonably arguable that publication capable of conveying defamatory meanings – application dismissed
PRACTICE AND PROCEDURE – application for further and better particulars of statement of claim – where pleadings clear – no justification for order for further and better particulars – application dismissed
DEFAMATION – practice and procedure – application to strike out parts of defence to a defamation action pursuant to r 16.21(1) Federal Court Rules 2011 (Cth) – where central hypothesis underlying defences flawed – where pleaded facts do not raise a reasonable defence to claim – where pleadings vexatious, frivolous, evasive, ambiguous, likely to cause prejudice and embarrassment – where defences of justification, contextual truth, qualified privilege, honest opinion and fair comment, which rely on the central hypothesis should be struck out – where pleaded facts not reasonably capable of being relevant to the mitigation of damages – where allegation of “abuse of process” does not raise a reasonable defence to claim – where proper course to seek summary judgment pursuant to r 26.01(1)(d) or strike-out pursuant to r 16.21(1)(f) Federal Court Rules 2011 (Cth) – where entire defence to be struck out on the basis that residue would be confusing – leave to re-plead granted
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Faruqi v Latham [2018] FCA 1328
Case
[2018] FCA 1328
Decision Date
CaseChat Overview and Summary
The parties to the interlocutory applications before the court were Mr Osman Faruqi, a Sydney-based writer and public commentator, and Mr Mark Latham, a public commentator and operator of a website. Mr Faruqi brought defamation proceedings against Mr Latham, alleging that statements made in a video published on Mr Latham's website defamed him. Mr Latham filed a defence to Mr Faruqi's claim, and both parties filed interlocutory applications seeking orders striking out parts of their opponent's pleadings. Mr Latham also sought an order requiring Mr Faruqi to provide certain further particulars of his claim.
The legal issues before the court included whether parts of Mr Faruqi's statement of claim and Mr Latham's defence should be struck out pursuant to r 16.21(1) Federal Court Rules 2011 (Cth). The court also had to decide whether Mr Faruqi should be required to provide further particulars of his claim. The court found that the central hypothesis underlying Mr Latham's defence was flawed and that the pleaded facts did not raise a reasonable defence to the claim. The court found that the defences were vexatious, frivolous, evasive, ambiguous, likely to cause prejudice and embarrassment, and that they relied on a central hypothesis that was flawed. The court also found that the allegation of "abuse of process" did not raise a reasonable defence to the claim. The court concluded that the proper course was to strike out the entire defence and grant leave to re-plead.
The court dismissed Mr Latham's application to strike out parts of Mr Faruqi's statement of claim, finding that the matter was best considered after full argument at trial. The court also dismissed Mr Latham's application for further and better particulars of Mr Faruqi's statement of claim, finding that the pleadings were clear and that there was no justification for an order for further and better particulars. The court ordered that Mr Latham's defence be struck out and that leave be granted to re-plead. The court also ordered that Mr Latham pay Mr Faruqi's costs of and associated with the interlocutory applications.
The court's orders included striking out Mr Latham's defence, dismissing Mr Latham's interlocutory application filed on 11 December 2017, dismissing Mr Faruqi's interlocutory application filed on 14 December 2017, and requiring the parties to arrange for a case management hearing to be listed on the earliest date suitable to the parties and the court after 28 September 2018.
Orders
Orders of the court
1. The respondent’s defence dated 23 November 2017 be struck out.
2. The applicant’s interlocutory application filed 14 December 2017 be otherwise dismissed.
3. The respondent’s interlocutory application filed 11 December 2017 be dismissed.
4. The respondent pay the applicant’s costs of and associated with the interlocutory applications referred to in orders 2 and 3.
5. The parties jointly arrange for the matter to be listed for a case management hearing on the earliest date suitable to the parties and the Court after 28 September 2018.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
These and other equally beguiling questions are raised by the interlocutory applications filed by the parties in this matter.BACKGROUND Mr Osman Faruqi is a Sydney-based writer and public commentator. Mr Mark Latham is a public commentator and operator of a website known as “Mark Latham’s Outsiders”. On 2 August 2017, a video entitled “Mark Latham’s Outsiders: The Rise of Anti-White Racism and Terrorist Plots in Australia” was uploaded to that, and a number of other, websites. In that video, Mr Latham is, amongst other things, seen and heard to say the following:… Anyone out there, on the left of politics in particular, that’s fermenting [sic] hatred of white people, the rise of anti-white racism in Australia, and also those fermenting [sic] the idea of an Islamic master race in Australia, they are aiding and abetting Islamic terrorism. They are giving encouragement and succour to the terrorist fanatics who want to kill innocent people in this country …Now there’s an instance of this earlier in the week, a guy called Osman Faruqi …Now this type of anti-white racism is totally unacceptable …These people are fermenting [sic] hatred of white people. And as such, they are effectively encouraging the terrorists in this political environment, to do their worst … Mr Faruqi promptly commenced proceedings in this Court alleging that Mr Latham had defamed him. He alleges that statements made in the video posted on Mr Latham’s website, including those just cited, carried three defamatory imputations: first, that Mr Faruqi knowingly assists terrorist fanatics who want to kill innocent people in Australia; second, that Mr Faruqi condones the murder of innocent people by Islamic terrorists; and, third, that Mr Faruqi encourages and facilitates terrorism. It is perhaps worth noting that Mr Faruqi’s statement of claim occupies just over two pages. Mr Latham filed a defence to Mr Faruqi’s claim. It runs, in total, to just over 76 pages in length and includes nine schedules. Its contents will be summarised shortly. For the moment, it suffices to say that the defence raises most, if not all, of the positive defences to an action in defamation which are available, both under the Defamation Act 2005 (NSW) and at common law. Those defences include the defence of justification under s 25 of the Defamation Act; the defence of contextual truth under s 26 of the Defamation Act; the defence of qualified privilege, both under s 30 of the Defamation Act and at common law; a defence of honest opinion under s 31 of the Defamation Act; the defence of fair comment at common law; and a defence based on Constitutionally-protected free speech. Both Mr Latham and Mr Faruqi filed interlocutory applications in which they sought orders striking out parts of their opponent’s pleading. Mr Latham also sought an order requiring Mr Faruqi to provide certain further particulars of his claim. Mr Latham’s primary contention was that the relevant publication, the video, did not have the capacity to convey the imputations alleged by Mr Faruqi. Mr Latham also challenged that aspect of Mr Faruqi’s pleading which, so Mr Latham contended, appeared to allege that the video was published in Australia’s external territories, including the Territory of Ashmore and Cartier Islands, the Coral Sea Islands Territory, and the Territory of Heard Island and McDonald Islands. The request for particulars related, not only to the basis upon which it was alleged that the video was published in the external territories, but also aspects of Mr Faruqi’s damages claim.