Faruqi v Latham
[2018] FCA 1328
•30 August 2018
FEDERAL COURT OF AUSTRALIA
Faruqi v Latham [2018] FCA 1328
File number: NSD 1828 of 2017 Judge: WIGNEY J Date of judgment: 30 August 2018 Catchwords: 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
Legislation: Defamation Act 2005 (Cth), ss 25, 26, 30, 31
Federal Court Act 1976 (Cth), s 37M
Federal Court Rules 2011 (Cth), rr 16.02, 16.21
Cases cited: Agar v Hyde (2000) 201 CLR 552
Allstate Life Insurance Company v Australia & New Zealand Banking Group Ltd (1994) 217 ALR 226
Ashcroft v Foley [2012] EWCA Civ 423; [2012] EMLR 25
Associated Newspapers Ltd v Dingle [1964] AC 371
Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430
Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434
Berezovsky v Forbes [2001] EWCA Civ 1251
Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Crosby v Kelly [2013] FCA 1343
Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575
Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263
Favell v Queensland Newspapers Pty Ltd [2004] QCA 135
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52
Fuller v Toms (2012) 247 FCR 440; [2012] FCA 27
Goh Nellie v Goh Lian Teck [2007] 1 SLR 453
Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135
Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152
Goody v Odhams Press Ltd [1967] 1 QB 333
Hickinbotham v Leach (1842) 152 ER 510
Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 at 513
J C Techforce Pty Ltd v Pearce (1996) 138 ALR 522
John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484
Khan v Fairfax Media Publications Pty Ltd (No 3) [2015] WASC 400
Lewis v Daily Telegraph Ltd [1964] AC 234
London Borough of Haringey v O’Brien [2016] UKEAT 0004
Morgan v Odhams Press Ltd [1971] 2 All ER 1156
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Murphy v Nationwide News Pty Ltd [2017] FCA 603
Murphy v Nationwide News Pty Ltd (No 2) [2017] FCA 781
Nationwide News Pty Ltd v El-Azzi [2004] NSWCA 382
O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89
Ontario v Lipsitz 2011 ONCA 466
Plato Films Ltd v Speidel [1961] AC 1090
Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Radisich v McDonald (2010) 198 IR 244; [2010] FCA 762
Reynolds (as liquidator of James Development Ltd (in liq)) v Calvert (as trustees of Frongopoulos Trust) [2015] NZHC 400
Rush v Nationwide News Pty Ltd [2018] FCA 357
Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550
Scott v Sampson (1882) 8 QBD 491
Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278
Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905
Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305
Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164
Wing v Fairfax Media Publications Pty Ltd (2017) 350 ALR 476; [2017] FCAFC 19
Wootton v Sievier [1913] 3 KB 499
Zierenberg v Labouchere [1893] 2 QB 183
Date of hearing: 29 March 2018 Registry: New South Wales Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 201 Counsel for the Applicant: Mr B McClintock SC with Mr J Mack Solicitor for the Applicant: Maurice Blackburn Lawyers Counsel for the Respondent: Mr A Morris QC Solicitor for the Respondent: Londy Lawyers ORDERS
NSD 1828 of 2017 BETWEEN: OSMAN FARUQI
Applicant
AND: MARK LATHAM
Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
30 AUGUST 2018
THE COURT ORDERS THAT:
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.
REASONS FOR JUDGMENT
WIGNEY J:
What does the martyrdom of Christians in the Roman Empire between the reign of the Emperor Nero Claudius Caesar Augustus Germanicus and Emperor Flavius Valerius Aurelius Constantinus Augustus have to do with a defamation action commenced in Australia in 2017? How could the persecution of ethnoreligious Huguenots in the French Kingdom during the French Wars of Religion of the Sixteenth Century be said to rationally affect the assessment of the probability of a fact in issue in a modern-day defamation action in which the defamatory imputations are said to be that the applicant knowingly assists terrorist fanatics who want to kill innocent people in Australia, or condones the murder of innocent people by Islamic terrorists, or encourages and facilitates terrorism‽ Could the fact of the segregation and ill-treatment of ethnic Negro people under the doctrine of Apartheid in South Africa between 1948 and 1991 reasonably be said to be relevant to the defences of justification, contextual truth, qualified privilege, honest opinion and fair comment pleaded by the respondent in that defamation action?
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.
For his part, Mr Faruqi contended, in short, that various parts of Mr Latham’s defence contained scandalous, frivolous or vexatious material, or were evasive or ambiguous, or were likely to cause prejudice, embarrassment or delay in the proceeding, or failed to disclose a reasonable defence appropriate to the nature of the relevant pleading, or were otherwise an abuse of the process of the Court.
For the reasons that follow, Mr Latham’s interlocutory application should be dismissed, and Mr Faruqi’s interlocutory application should, for the most part, be allowed.
It is convenient to first address Mr Latham’s interlocutory application.
IS THE VIDEO CAPABLE OF CONVEYING THE ALLEGED DEFAMATORY IMPUTATIONS?
The substantive question raised by Mr Latham’s interlocutory application is whether the impugned publication, the video, is capable of conveying the alleged defamatory imputations.
The principles that should be applied in addressing that question were not in dispute.
The question whether a publication is capable of conveying a defamatory meaning is a question of law: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186 at [9], [17]. The question is whether the challenged defamatory meanings or imputations could reasonably be found by the tribunal of fact to have been conveyed by the publication: Favell at [14]-[15]; Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [138]. In this Court, the tribunal of fact is likely to be the trial judge, not a jury: Wing v Fairfax Media Publications Pty Ltd (2017) 350 ALR 476; [2017] FCAFC 19. In those circumstances, the utility of considering this issue on an interlocutory basis before trial is perhaps questionable: Murphy v Nationwide News Pty Ltd [2017] FCA 603 at [14]; Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [78].
In any event, the question is to be determined from the perspective of the ordinary reasonable reader (or listener or viewer, depending on the nature of the matter complained of). It should be borne in mind, in that context, that ordinary readers draw implications much more freely than lawyers, especially when they are derogatory: Favell at [11], referring to the judgment of Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 277.
Striking out a pleading, or part of it, on the basis that the publication was not capable of giving rise to the defamatory imputations alleged is a matter for the discretion of the judge hearing the application. Such a step is not to be undertaken lightly, but only with great caution: the “fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion”: Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 at [2]; approved in Favell at [6].
The capacity determination is “an exercise in generosity not parsimony”: Corby at [135] citing Berezovsky v Forbes [2001] EWCA Civ 1251 at [16]. In Corby, McColl JA (with whom Gleeson JA agreed) said (at [136]):
One reason “great caution” is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that “no reader could reasonably understand the words to bear any meaning outside the range delimited ... by the judge; and that it would be ‘perverse’ for any jury to do so’”: Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 89 (at [9]) per Simon Brown LJ (Mummery and Mance LJJ agreeing).
The caution that should be exercised in considering whether to strike out a pleading, or part of it, in a defamation case based on a capacity determination, is consistent with the principles that apply generally to the striking out of pleadings pursuant to r 16.21 of the Federal Court Rules 2011 (Cth). The power to strike out pleadings or portions of pleadings is discretionary and should be employed sparingly and only in a clear case: Radisich v McDonald [2010] FCA 762; 198 IR 244; at [20] and the authorities there cited. The Court is careful to ensure that it does not, in striking out a pleading, prevent a party from making a case that it is entitled to make: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175; Murphy v Nationwide News Pty Ltd (No 2) [2017] FCA 781 at [20].
Mr Latham submitted that the words used in the video are not capable of conveying the imputation that Mr Faruqi “knowingly assists terrorist fanatics who want to kill innocent people in Australia” because the words used in the video are “utterly incapable” of conveying that Mr Faruqi “knowingly” provided that assistance. That submission appeared to amount to a concession that the words used in the video are capable of conveying that Mr Faruqi assisted terrorist fanatics who wanted to kill innocent people in Australia. The contention was that they just did not convey that he did so “knowingly”.
Mr Latham’s submission in relation to the imputation that Mr Faruqi “condones the murder of innocent people by Islamic terrorists” focussed on the word “condones”. He submitted that the words used in the video are incapable of conveying that Mr Faruqi condones such actions, meaning that he approves, sanctions, countenances or endorses such actions.
In relation to the third alleged imputation, that Mr Faruqi “encourages and facilitates terrorism”, Mr Latham conceded that the words used in the video are arguably capable of conveying that Mr Faruqi encourages terrorism. He submitted, however, that the words are not capable of conveying that Mr Faruqi also facilitates terrorism.
Each of those arguments can be dealt with shortly. While there may ultimately be some force in Mr Latham’s arguments that the words used in the video did not, in fact, convey any of the pleaded imputations, it cannot be concluded that no ordinary viewer of the video could reasonably have understood the words to bear any of the alleged meanings, or that it would be perverse for them to do so.
While it may be correct that the words used in the video may not, in terms, expressly state that Mr Faruqi knew that his words or actions assisted terrorist fanatics who wanted to kill innocent people in Australia, or that he condoned the murder of innocent people by Islamic terrorists, or that he not only encouraged, but also facilitated, terrorism, it is at least reasonably open to find that an ordinary viewer of the entire video might “read between the lines” (cf. Lewis at 258) and draw those implications or inferences. The use of expressions such as “aid and abet”, and evocative words like “succour”, might be said to make the drawing of such implications more likely.
The final determination of whether ordinary reasonable readers would draw such implications is a matter best considered after full argument at trial. It is sufficient at this stage to simply find that it is at least reasonably arguable that they would.
It follows that Mr Latham’s contention that the video is not capable of conveying the alleged imputations is rejected.
OTHER ISSUES RAISED BY MR LATHAM’S INTERLOCUTORY APPLICATION
At the hearing of the interlocutory application, Mr Faruqi disclaimed any reliance on publication in the external territories. That disclaimer resolved Mr Latham’s complaint, and request for particulars, concerning what he claimed was an allegation that the video had been published in Australia’s external territories.
Mr Latham’s other complaint concerning the allegation that the video had been published appeared to relate to the date on which that was said to have occurred. While Mr Faruqi’s pleading alleged that the video was uploaded on 2 August 2017, it does not follow, in Mr Latham’s submission, that the video was published on that date. That is because the video was not published until it was, in fact, communicated to a third person. Mr Latham relied, in support of that submission, on the judgment of the High Court in Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575.
That complaint amounts to nothing more than a pleader’s quibble. It certainly does not warrant the striking out of any part of Mr Faruqi’s pleading. The pleading alleges that the video was downloaded, viewed and comprehended in each State and Territory of Australia, though, as just noted, Mr Faruqi now disclaims any publication in the external territories. Particulars of the number of times the video was viewed on one particular website, and “liked” or “shared” on another, are provided. Mr Faruqi plainly did not and does not intend to allege that all those viewings occurred on 2 August 2017. The date on which the video was uploaded is largely immaterial, other than that it indicates that the video was viewed by third parties on or after that date.
Mr Latham’s other complaints concerned Mr Faruqi’s claim that he is entitled to aggravated damages. The first complaint was resolved by an amendment to the pleading, made at the hearing, to correct a typographical error. The pleading initially alleged that Mr Latham knew the imputations to be false. After the amendment, the pleading alleges that Mr Faruqi knew that the imputations were false and is entitled to aggravated damages on that basis. No further particulars of that allegation are required. It is a circumstance that, at least arguably, may result in an award of aggravated damages.
The second complaint relating to Mr Faruqi’s claim of aggravated damages concerned the allegation that Mr Latham refused to cease publication of the imputations, despite being requested to do so in a letter dated 17 August 2017. Mr Latham’s complaint is that the letter did not ask him to cease publishing the pleaded imputations. Rather, it asked him to cease publishing other statements made in, or other meanings allegedly conveyed by, the video. Mr Faruqi’s response was that the filing of his claim in this Court amounted to a demand that Mr Latham cease publishing the alleged imputations. It is unnecessary to resolve this issue or say anything further about it. Mr Faruqi’s case in relation to this aspect of his claim for aggravated damages is clear. So too is Mr Latham’s response. No further particulars are required. There is no reason to strike out this particular of the claim for aggravated damages.
The third complaint concerned the lack of particularity of the allegation that Mr Latham’s “attack” on Mr Faruqi was “intemperate”. Mr Faruqi’s case, however, is that the intemperate nature of Mr Latham’s conduct is readily apparent, and is an available inference from, the video itself. That submission should be accepted. No further particulars of that allegation are required. There is no reason to strike out this particular of the claim for aggravated damages.
It follows that, save for the matters resolved by way of concession or amendment at the hearing, none of the arguments advanced by Mr Latham for striking out, or requiring further particulars, of any part of Mr Faruqi’s claim have any merit. Mr Latham’s interlocutory application should accordingly be dismissed.
MR LATHAM’S DEFENCE
Mr Latham’s defence is, on just about any view, an extraordinary document. In order to address Mr Faruqi’s strike out application, it is necessary to attempt to come to grips with it. That is no mean feat.
There are 12 “parts” to the defence. There are also nine schedules.
Part A of the defence purports to deal with the interpretation of the defence. It needs to be read in conjunction with Schedule I, which is said to be a “dictionary” of words and expressions used in the defence. The dictionary includes, amongst other things, a dramatis personae, a list of online biographical notes regarding Mr Faruqi, references to “internet terminology”, and a description of certain “Islamic terrorist atrocities”. One example from the dictionary will perhaps suffice to give a general flavour of what is under consideration. The expression “the Bowdlerization” is defined in the dictionary as follows:
the expression, referred to in subparagraph 65(b)(ii) of this pleading:
Ÿwhich Latham used in lieu of the word “fucked”;
Ÿcomprising the name of the letter “F” followed by the past participial suffix “-ed”; and
Ÿsounding roughly like “effed”.
Part A of the defence also refers to the “adjectival meaning” of certain words, such as “white”, “brown” and “Person of Colour”. It also helpfully points out that the schedules form part of the pleading, but that the table of contents and headings are provided for “ease of reference” only.
Mr Faruqi contended that paragraphs 3 and 4 of Part A should be struck out on the basis that they do not give rise to a reasonable defence. Paragraphs 3 and 4 are in the following terms:
3. The term “brown”:
(a)is used by Faruqi discriminately in his public utterances, including those referred to in Part D of this pleading, as an adjective to distinguish persons who possess:
(i) darker skin; and
(ii)other racial characteristics not ordinarily associated with a European ethnic heritage; and
(b) when used in this pleading, bears the same adjectival meaning.
4. The term “Person of Colour” (or its abbreviation, “PoC”):
(a)is used by Faruqi discriminately in his public utterances, including those referred to in Part D of this pleading, as a noun to distinguish persons whom Faruqi would otherwise identify as either:
(i) “brown”; or
(ii) not “white”; and
(b) when used in this pleading, bears the same meaning.
Part B of the defence contains Mr Latham’s “Objections in point of law” in relation to Mr Faruqi’s claim. Some of the pleaded objections use the language of r 16.21 of the Rules and appear to amount to contentions that various paragraphs of Mr Faruqi’s pleading should be struck out. Why those contentions are included in Mr Latham’s defence, as opposed to in an interlocutory application seeking to strike out those paragraphs of the pleading, is unclear.
In any event, Mr Faruqi contended that only paragraph 14 of Part B should be struck out on the basis that it is likely to cause prejudice or embarrassment. Paragraph 14 is in the following terms:
14.Further or in the further alternative: Latham objects in point of law that subparagraph 6(a) of the Amended Statement of Claim is embarrassing and incompetent, on the grounds that:
(a)alleged defamatory meaning (a) comprises distinct and discrete allegations, that the “Matter Complained Of” carries at least two defamatory meanings; that is to say:–
(i)that Faruqi “assists terrorist fanatics who want to kill innocent people in Australia”; and
(ii) that Faruqi does so “knowingly”; and
(b)in the premises, subparagraph 6(a) of the Amended Statement of Claim is bad for duplicity.
Part C of the defence is entitled “Who is Faruqi”. As that title suggests, it contains various assertions or allegations concerning how Mr Faruqi has been described by himself and others. While the relevance or significance of much of what has been pleaded in Part C is perhaps questionable, Mr Faruqi does not seek to strike out any paragraphs within it.
Part D of the defence is entitled “Faruqi’s vilification of “white” people”. Mr Faruqi contended that paragraphs 27 and 28 of Part D should be struck out on the basis that they contain frivolous or vexatious material, are evasive or ambiguous, are likely to cause prejudice or embarrassment, do not raise a reasonable defence, or are otherwise an abuse of the process of the Court. Paragraphs 27 and 28 are in the following terms.
27.Faruqi’s Twitter feed includes the Tweets set forth in the second column of the table contained in Schedule II, issued by Faruqi on or about the respective dates set forth in the first column thereof.
28. As “News and Politics Editor” of Junkee, Faruqi:
(a) regularly contributes articles which:
(i) portray “white” people in a poor light; and
(ii) portray “brown” people in a better light; and
(b)regularly authorizes, sanctions and approves the publication on Junkee of articles which:
(i) portray “white” people in a poor light; and
(ii) portray “brown” people in a better light.
As can be seen, paragraph 27 incorporates Schedule II. Schedule II contains some of the content of 164 “tweets” said to have been posted by Mr Faruqi on his Twitter account between 16 January 2012 and 22 November 2017. One of them is the tweet that appears to have provoked Mr Latham’s ire and, in due course, prompted Mr Latham’s comments concerning Mr Faruqi in the video. In that tweet, Mr Faruqi states: “The white people are getting fucked Yas, it’s happening”. Read in isolation, that tweet does not appear to make much sense. The same could perhaps be said of some of the other tweets referred to in Schedule II.
It is not entirely clear what Schedule II is intended to allege, particularly because, in accordance with paragraph 9 of Part A of the defence, the heading of Part D and Schedule II is included for “ease of reference” only and does not affect the meaning of the pleading. It is perhaps intended to support the allegation that Mr Faruqi regularly sends tweets which, to use the language of paragraph 28, portray “white” people in a poor light and portray “brown” people in a better light. That hardly amounts to an allegation that Mr Faruqi vilifies white people, or is a “racist who has committed anti-white racism” or is someone who has “foment[ed] the rise of anti-white racism” as alleged in, for example, paragraphs 73 and 74 of the pleading.
The question whether that allegation could reasonably be made out by the tweets in Schedule II, many of which could, on one view at least, fairly be characterised as asserting racism against “brown” people, or at least favouritism towards “white” people in Australian society, is considered later. In any event, Mr Faruqi’s primary submission was that, even if the tweets and the allegations in paragraph 28 are capable of establishing that Mr Faruqi vilifies white people, that fact is irrelevant to any defence pleaded by Mr Latham.
Part E of the defence is entitled “The connexion between racial vilification and racist violence”. It essentially puts forward a hypothesis which is central, if not critical, to many, if not most, of Mr Latham’s defences. Mr Faruqi contended that the entirety of Part E, which comprises paragraphs 29 to 32B, should be struck out on the basis that it contains frivolous or vexatious material, is evasive or ambiguous, is likely to cause prejudice or embarrassment, does not raise a reasonable defence, or is otherwise an abuse of the process of the Court. Paragraphs 29 to 32A are in the following terms:
29.The vilification of a particular racial or religious group (“the vilified grouping”):
(a) tends to:
(i) demonize and ostracize members of the vilified group; and
(ii) de-humanize such members;
(b)tends to cause, amongst persons of different racial heritage or religious adherence:
(i)the eradication or diminution of empathy with members of the vilified grouping; and
(ii)the creation of a mindset of detachment and dissociation from members of the vilified grouping; and
(c)thereby facilitates and encourages, amongst persons of different racial heritage or religious adherence:
(i)the recruitment of such persons to commit acts of violence against members of the vilified grouping; and
(ii)the commission by such persons of acts of violence against members of the vilified grouping.
29A.In compliance with Rule 16.03(1)(b) of the Federal Court Rules, Latham pleads the facts set forth in paragraphs 30 to 32B of this pleading as facts which:
(a) may take Faruqi by surprise if not expressly pleaded;
(b)form part of Latham’s case which Faruqi will be required to meet at trial; and
(c)in the case of paragraph 32B of this pleading, will be relied upon by Latham at trial as comprising admissions against interest by Faruqi with respect to:
(i)the phenomenon described in paragraph 29 of this pleading; and
(ii) the matters set forth in paragraph 32A of this pleading.
30.The phenomenon described in paragraph 29 of this pleading has been observed in the historical context of various acts and events which are, or which are widely regarded as being, in the nature of genocide, including those identified in Schedule III.
31.The phenomenon described in paragraph 29 of this pleading has also been observed in:
(a)the persecution and martyrdom of Christians in the Roman Empire between the reign of the Emperor Nero Claudius Caesar Augustus Germanicus, known as “Nero”, and the reign of the Emperor Flavius Valerius Aurelius Constantinus Augustus, known as “Constantine the Great”, concluding with the Edict of Milan of 313 AD;
(b)persecution of ethnoreligious Huguenots in the French Kingdom during the French Wars of Religion of the Sixteenth Century, culminating in the St. Bartholomew’s Day massacre of 1572;
(c) persecution in England, from the reign of Queen Elizabeth I, of:
(i)Protestant nonconformists, until the Act of Toleration of 1689; and
(ii)Roman Catholics, until the Roman Catholic Relief Act of 1791;
(d)segregation and ill-treatment of ethnic Negro people under the doctrine of Apartheid:
(i) in South Africa, between 1948 and 1991; and
(ii)in Rhodesia (modern Zimbabwe), between 1965 and 1979; and
(e)the violence and intimidation inflicted on African-Americans, principally in the southern states of the United States of America, by the Klu Klux Klan and other “white supremacist” organizations and vigilantes, since about 1946, peaking in the 1950s and 1960s.
32.The phenomenon described in paragraph 29 of this pleading has been documented in academic literature, including the articles identified in Schedule IV.
32A.In contemporary times, the phenomenon described in paragraph 29 of this pleading is especially potent and fecund if vilification of the vilified grouping is effected by means of an on-line social medium, such as Twitter or Facebook.
Paragraph 32B contains an image of tweets posted by Mr Faruqi on 26 October 2017 and 1 November 2017.
The tweets posted by Mr Faruqi on 26 October 2017 appear to have been in response to a Facebook post which reads: “Earn a better response rate on Osman Faruqi by responding to a message from Bryan Burman”. The said message from Bryan Burman, apparently directed at Mr Faruqi, was: “You are the lowest of low scum. Oh well we know who you are now. Eyes open fucker you never know what is around the next corner”. Mr Faruqi’s response to the Facebook post was: “Cheers Facebook for encouraging me to respond to the hundreds of racist messages and death threats I’ve received this week”. In another post, Mr Faruqi writes: “What am I supposed to say, “Thanks for threatening to kill me”? My poor response rate”.
In one of the tweets posted on 1 November 2017, Mr Faruqi writes: “Whenever I experience a surge in death threats or slightly more benign racism I check if Bolt has written something - I’m never disappointed” and “Great that we have a culture where commentators can unleash a wave of idiocy with a blog post”.
It would appear from paragraph 29A of the defence that Mr Latham alleges that those tweets somehow show that Mr Faruqi himself accepts or admits the “phenomenon” described in paragraph 29.
As can be seen, paragraph 30 incorporates Schedule III and paragraph 32 incorporates Schedule IV. Schedule III is entitled “Historical examples of vilification promoting genocide”. It contains a series of brief descriptions of historical events, starting with the Massacre at Ayyadieh of “Saracen” troops under An-Nasir Salah ad-Din Yusuf ibn Ayyub by forces commanded by King Richard I of England on 20 August 1191, and ending with the genocide of Rohingya people by the Myanmar Army and police in Rakhine State since 2016. It is unnecessary to detail all of the events contained in this Schedule, which runs to just over two pages. It should, however, perhaps be noted that some people might well dispute the causes and characterisation of some of what appears to be portrayed in this Schedule as ineluctable historical facts.
Schedule IV is entitled “Academic articles: Effects of racial vilification”. As the title suggests, it contains a list, running to almost five pages, of various academic articles. It is not entirely clear what use is to be made of the articles in the list. Does Mr Latham intend to tender them all if Mr Faruqi does not admit the alleged phenomenon?
The basis upon which Mr Latham asserts that the phenomenon alleged in paragraph 29 is relevant to his defences will be examined in detail later. It suffices for present purposes to note that the terms of the defence suggest that Part E is said to be relevant to Mr Latham’s defences of justification, contextual truth, qualified privilege, honest opinion and fair comment. Mr Faruqi, on the other hand, contended that the material in Part E is irrelevant to any matter that arises from his pleading or any reasonable defence. Indeed, Mr Faruqi contended that the central hypothesis that appears to underlie Mr Latham’s reliance on the pleaded phenomenon and historical events is “a massive non sequitur”.
Part F of the defence is entitled “Faruqi’s response to Islamic terrorist atrocities”. It contains details of three incidents involving terrorists who associated themselves with Islamic extremists and purports to summarise the content or effect of articles published by Mr Faruqi in relation to those incidents. The three incidents are the Lindt Café “siege”, which occurred in Sydney on 15-16 December 2014; the suicide bombings and shootings that occurred in Paris on 13 November 2015; and the bombings that occurred in Brussels on 22 March 2016. Mr Faruqi contended that the entirety of Part F, which comprises paragraphs 33 to 55, should be struck out on the basis that it contains frivolous or vexatious material, is evasive or ambiguous, is likely to cause prejudice or embarrassment, does not raise a reasonable defence, or is otherwise an abuse of the process of the Court.
It is sufficient, for present purposes, to set out paragraphs 33 to 42 of the defence, which concern the Lindt Café incident. Paragraphs 43 to 49, which deal with the Paris attacks, and paragraphs 50 to 55, which deal with the Brussels bombings, are in relevantly similar terms. Paragraphs 33 to 42 of the defence are in the following terms:
33.On 15-16 December 2014, an incident known as “the Lindt Café siege” (also known as “the Sydney siege” or “the 2014 Sydney hostage crisis”) occurred in Martin Place, Sydney.
34. The Lindt Café siege was perpetrated by one Man Haron Monis.
35. Monis:
(a) was born in Iran;
(b) was an adherent of the Islamic faith; and
(c) obtained political asylum in Australia in 2001.
36. In perpetrating the Lindt Café siege, Monis:
(a) expressed allegiance to “the caliph of the Muslims”, meaning ISIL;
(b) denounced moderate Islam;
(c)was wearing a black headband with inscriptions, in Arabic, to the effect:
(i) “We are ready to sacrifice for you, O Mohammad”; and
(ii) “May Allah honour him and grant him peace”; and
(d)compelled hostages to hold the Black Standard flag against the window of the café.
37.ISIL, through its on-line magazine Dabiq, subsequently claimed that, in perpetrating the Lindt Café siege, Monis had joined “the mujahidin of [ISIL] in their war against the crusader coalition”.
38.On 15 January 2015, the Lindt Café siege was declared under subsection 6(6) of the Terrorism Insurance Act 2003 (Cth.) to be a “terrorist incident”.
39.On 24 May 2017, following a lengthy inquest, the New South Wales State Coroner determined that the Lindt Café siege was a terrorist incident.
40. In the course of the Lindt Café siege:
(a)18 people were taken hostage, all of them innocent and most of them “white”;
(b) 2 of those innocent “white” people were killed;
(c)3 more of those people were injured, all of them innocent and most of them “white”; and
(d) a police officer, responding to the siege, was also injured.
41.On the day that the Lindt Café siege concluded, 16 December 2014, an article by Faruqi in relation to the Lindt Café siege was published on the website of the British newspaper The Independent under the headline, “Sydney siege: Australia’s Muslims need much more than #IllRideWithYou’s hollow symbolism”, at:
Lindt Café siege article:
(a)did not denounce, or express any condemnation, censure, or criticism of:
(i) the Lindt Café siege; or
(ii) Monis, as perpetrator of the Lindt Café siege; or
(iii) Islamic terrorist atrocities generally; or
(iv) ISIL-inspired Islamic terrorist atrocities in particular;
(b) merely described the Lindt Café siege, objectively, as “devastating”;
(c)focussed principally on what could and should be done, in light of the Lindt Café siege, to benefit Australia’s Muslim community; and
(d)reserved his denunciation, condemnation, censure, and criticism for “the far-right Australian Defence League” which he accused of creating a “context of bigotry and intimidation”.
As was the case with Part E of the defence, the terms of the defence suggest that Mr Latham asserts that the matters pleaded in Part F of the defence are relevant to his defences of justification, contextual truth, qualified privilege, honest opinion and fair comment. Mr Faruqi contended, however, that the matters pleaded in Part F are wholly irrelevant. The rival arguments in that regard will be explored in more detail later. It is sufficient for present purposes to note that Part F appears to build on or further develop the alleged historical phenomenon which is the subject of Part E. Mr Latham’s case would appear to be, in short terms, that the three terrorist incidents referred to in Part F were encouraged and facilitated by people who demonised “white” people. Mr Faruqi contended, however, that Mr Latham’s hypothesis in that regard is based on the false, or at least undemonstrated, premise that the victims of those terrorist attacks were targeted because they were “white”.
Part FA of the defence is entitled “Faruqi’s incitement of racial violence”. The main allegation contained in Part FA is that, on 9 November 2017, Mr Faruqi “incited others to commit or threaten physical harm towards a person or group of persons on the ground of … race”. The basis of that allegation is the content of two tweets posted by Mr Faruqi on 9 November 2017. Those tweets appear to have been prompted by a report in the Huffington Post with the title “Right-Wing Hate Group Attacks Sam Dastyari at Melbourne Pub”. Mr Faruqi’s tweets were:
No one else chimed in? The pub staff just watched this guys [sic] racially abuse someone and did nothing? Always incumbent on victims of racism to do the heavy lifting.
People in this situation always get hailed for “handling it well” when they should be supported in clocking dickheads like this in the face.
It would appear that it is the second tweet which is said to incite violence. The premise seems to be that the incitement was against people who were “white”.
The terms of Mr Latham’s defence would suggest that his case is that the matters pleaded in Part FA of the defence are relevant to his defences of justification, contextual truth, qualified privilege, honest opinion and fair comment.
Mr Faruqi, however, contended that Part FA should be struck out on the basis that it contains frivolous or vexatious material, is evasive or ambiguous, is likely to cause prejudice or embarrassment, does not raise a reasonable defence, or is otherwise an abuse of the process of the Court.
Part G of the defence is entitled “Faruqi’s personal attacks on Latham”. Paragraph 56 of the defence incorporates Schedule V, which is entitled “Faruqi’s tweets personally attacking Latham”, and contains some details of 10 tweets allegedly posted by Mr Faruqi between approximately 13 June 2012 and 1 August 2017. Paragraphs 57 to 60 contain some details of articles allegedly published by Mr Faruqi on the Junkee website. Paragraph 61 alleges that those articles subjected Mr Latham to “scorn, derision, ridicule and mockery”. The terms of Mr Latham’s defence suggest that his case is that the matters pleaded in Part G are relevant to Mr Faruqi’s antecedent reputation and character and the damages to which Mr Faruqi may be entitled: see paragraphs 98 and 114 to 118 of the defence.
Mr Faruqi contended that Part G in its entirety should be struck out on the basis that it is likely to cause prejudice or embarrassment, or does not raise a reasonable defence.
Part H of the defence, which comprises paragraphs 62 to 68, is entitled “Response to pleaded allegations”. It is the one part of the defence that specifically pleads to the allegations in Mr Faruqi’s statement of claim. Mr Faruqi does not contend that any paragraph in Part H should be struck out.
Part I of the defence contains details of Mr Latham’s positive or specific defences to Mr Faruqi’s claim.
Paragraph 72 raises the defence of justification in s 25 of the Defamation Act. Mr Latham pleads, in short, that the imputations that Mr Faruqi alleges were carried by the video were substantially true. The particulars of the allegation of substantial truth are said to be contained in Parts D, E, F and FA of the defence.
Mr Faruqi contended that paragraph 72 should be struck out on the basis that it does not raise a reasonable defence of justification, or is otherwise an abuse of the process of the Court.
Paragraphs 73 to 75 of the defence raise the defence of contextual truth pursuant to s 26 of the Defamation Act. The additional or contextual imputations that Mr Latham contends are carried by the video are set out in paragraph 73 as follows:
73.In addition to the alleged defamatory meanings, the words contained on the 2 August 2017 video and (in particular) the corrected Schedule A words carried the following further meanings; that is to say:–
(a) that Faruqi is a racist who has committed anti-white racism;
(b)that Faruqi has contributed to fomenting the rise of anti-white racism in Australia;
(c)that, by his contribution to fomenting hatred of white people and the rise of anti-white racism in Australia, Faruqi has aided and abetted Islamic terrorism;
(d)that, by his contribution to fomenting hatred of white people and the rise of anti-white racism in Australia, Faruqi has given encouragement and succour to the terrorist fanatics who want to kill innocent people in Australia;
(e)that the words of Faruqi’s Tweet of 27 July 2017, “The white people are getting fucked Yas, it’s happening”:
(i)were directed at white people who were elected to be members of the Australian Senate as endorsed candidates for The Greens;
(ii)were published by Faruqi in circumstances where Faruqi was a former staffer for The Greens; and
(iii) therefore reflected gross disloyalty on the part of Faruqi;
(f)that, by his Tweet of 27 July 2017, Faruqi celebrated anti-white racism in Australia;
(g)that Faruqi’s conduct, as set forth in subparagraphs (a) to (d) and subparagraph (f) hereof, is totally unacceptable in Australia;
(h)that, by fomenting hatred of white people, Faruqi and others are effectively encouraging the terrorists in the current political environment to do their worst;
(i)that Faruqi’s anti-white racism is un-Australian, because no racial hatred of any kind should be tolerated in Australia;
(j)that Faruqi’s conduct, as set forth in subparagraphs (a) to (d), subparagraph (f) and subparagraph (h) hereof, has contributed to a rise in anti-white racism which is unacceptable to an extent that may fairly be characterized as unusual, significant, remarkable, extraordinary or outstanding; and
(k)that Faruqi is an “imbecile” in the popular sense of that term, which is to say a foolish or stupid person.
Mr Latham pleads that the contextual imputations are substantially true. The particulars of the substantial truth of the imputations are said to be found in Parts C, D, E, F and FA of the defence: see paragraph 74 of the defence.
Mr Faruqi contended that the pleaded defence of contextual truth should be struck out on the basis that it is likely to cause prejudice or embarrassment, or that no reasonable defence is raised.
Paragraphs 76 to 79 of the defence plead the defence of qualified privilege pursuant to s 30 of the Defamation Act and, apparently, common law. The subjects that recipients of the video are alleged to have had an interest in having information on are set out in the following terms in paragraph 76:
76.In the premises set forth in Part C, Part D, Part E, Part F and Part FA of this pleading, viewers of the 2 August 2017 video had an interest, or an apparent interest, in having information on the following subjects; that is to say: –
(a) the rise of anti-white racism in Australia;
(b) the fomenting in Australia of hatred directed against white people;
(c)Faruqi's Tweet of 27 July 2017, as an example of the rise of anti-white racism in Australia and the fomenting in Australia of hatred directed against white people;
(d)Faruqi's gross disloyalty, as a former staffer for The Greens, in publishing his Tweet of 27 July 2017 directed at white people who were elected to be members of the Australian Senate as endorsed candidates for The Greens;
(e)the connection between (on the one hand) the rise of anti-white racism in Australia and the fomenting in Australia of hatred directed against white people, and (on the other hand) the likelihood of Islamic terrorist atrocities being committed in Australia; and
(f)the views and opinions of Latham, with respect to the matters set forth in subparagraphs (a) to (e) hereof, as:
(i) a public commentator; and
(ii)a former Federal Leader of a major political party (the Australian Labor Party).
Mr Latham pleads that his conduct in publishing the video was reasonable in the circumstances. The relevant circumstances are said to be found in Parts C, D, E, F and FA of the defence: see paragraph 79 of the defence.
Mr Faruqi contended that the pleaded defence of qualified privilege should be struck out on the basis that paragraphs 76 to 79 are evasive or ambiguous, are likely to cause prejudice or embarrassment, or do not raise a reasonable defence.
Paragraphs 80 to 82 raise a defence of honest opinion pursuant to s 31 of the Defamation Act. Like the pleaded defences of justification, contextual truth and qualified privilege, the pleaded defence of honest opinion relies on Parts C, D, E, F and FA of the defence. Mr Latham appears to contend that the alleged defamatory imputations were expressions of his opinion, rather than statements of fact (see paragraph 80 of the defence), that his opinions related to matters of public interest, and that his opinions were based on “proper material”. Paragraph 82 sets out the basis of the contention that Mr Latham’s opinion was based on “proper material”:
82.Latham’s opinions with respect to the matters conveyed by the 2 August 2017 video were based on proper material, namely:
(a) Faruqi’s Tweet of 27 July 2017;
(b) knowledge of Faruqi’s position as a former staffer for The Greens;
(c)a general awareness (though not a detailed knowledge) of Faruqi’s vilification of “white” people, as set forth in Part D of this pleading;
(d)a general awareness (though not a detailed knowledge) of the connexion between racial vilification and racist violence, as set forth in Part E of this pleading; and
(e) with respect to Islamic terrorist atrocities:
(i)a general awareness (though not a detailed knowledge) of Faruqi’ response to such atrocities, as set forth in Part F of this pleading; and
(ii)in particular, a knowledge that Faruqi, having made public comments about a number of such atrocities, had not denounced, or expressed any condemnation, censure, or criticism of, the perpetrators of such atrocities.
Mr Faruqi contended that the pleaded defence of honest opinion should be struck out on the basis that paragraphs 80 to 82 are, variously, evasive or ambiguous, are likely to cause prejudice or embarrassment, or do not raise a reasonable defence.
Paragraphs 83 to 85 of the defence purport to plead the common law defence of fair comment. It is, in short, alleged that Mr Faruqi is a public figure (see paragraph 83 of the defence) and that the defamatory imputations constituted fair comment with respect to Mr Faruqi’s character and conduct in his capacity as a public figure (see paragraph 85 of the defence). The defence of fair comment also relies on Parts C, D, E, F and FA of the defence. Those parts are said to constitute “proper material [that] was true in substance” (see paragraph 84 of the defence).
Mr Faruqi contended that the pleaded defence of fair comment in paragraphs 83 to 85 should be struck out on the basis that it does not raise a reasonable defence.
Paragraph 86 of the defence pleads that the video constituted an exercise of Mr Latham’s “constitutionally-protected right to free speech” with respect to “political and government matters relevant to the system of representative and responsible government provided for by the Australian Constitution”. Mr Faruqi does not contend that this paragraph should be struck out.
Part J of the defence, which includes paragraphs 87 to 92, is entitled “Abuse of Process”. It contains a series of factual allegations which are said to support the conclusion that Mr Faruqi and his solicitors commenced the proceeding against Mr Latham for purposes that were ulterior, collateral, illegitimate and improper. It is unnecessary for present purposes to set out the detail of the pleaded allegations. It is sufficient to note that Mr Latham has not applied to have Mr Faruqi’s claim struck out or summarily dismissed on the basis that it was commenced for an improper purpose.
Mr Faruqi contended that Part J of the defence should be struck out in its entirety on the basis that it contains material which is frivolous or vexatious, that it is likely to cause prejudice or embarrassment, or that does not raise a reasonable defence.
Part K of the defence is a lengthy part of the defence, comprising paragraphs 93 to 131. It contains various factual allegations that are said to be relevant to Mr Faruqi’s reputation and the mitigation of damages. Mr Faruqi contended that paragraphs 94 to 131 should be struck out on the basis that they contain material that is frivolous or vexatious, is likely to cause prejudice or embarrassment, does not raise a reasonable defence, or is otherwise an abuse of the process of the Court.
Paragraphs 94 to 99 make various general allegations about Mr Faruqi’s reputation, including that his reputation was that of: an “anti-white racist” and a person who “fomented anti-white racism”; a person who gave aid and succour to Islamic terrorism; a person who was indifferent to mass murder committed by Islamic terrorists; a person who regarded the political interests of Muslims as having greater significance than mass murder committed by Islamic terrorists; a commentator who vilifies another commentator in various ways; and a commentator who regularly and consistently published tweets of an infantile, puerile or juvenile character, and was unable to express himself in a public forum without resort to crude, indecent, obscene and offensive language. It is also alleged, in the alternative, that Mr Faruqi did not deserve to enjoy a better reputation than a person who had a reputation as otherwise alleged.
Importantly, those general allegations concerning Mr Faruqi’s reputation rely, variously, on Parts D, E, F, FA and G and Schedules II and V of the defence.
Paragraphs 100 to 110 contain allegations concerning published exchanges between Mr Faruqi and two authors or commentators. The first exchange was between Mr Faruqi and Mr Stephen Koukoulas, a well-known and respected Australian economist, concerning Mr Faruqi’s “blog” response to an article published Mr Koukoulas, and Mr Koukoulas’ response to Mr Faruqi’s critique. Schedule VIII to the defence is said to contain passages from Mr Koukoulas’ response. This exchange is said to demonstrate that Mr Faruqi’s reputation was that of a journalist or commentator who, amongst other things, was lazy, sloppy, conducted inadequate research and engaged in cheap attacks. The second exchange was between Mr Faruqi and Mr Thomas Samm concerning an article published by Mr Samm on the website of The New English Review. That article was a response to Mr Faruqi’s earlier article concerning the Lindt Café siege. Mr Samm’s article is reproduced in Schedule IX to the defence. This exchange is said to demonstrate that Mr Faruqi’s reputation was, amongst other things, that of a commentator or a professed journalist who was indifferent to the murder of non-Muslim Australians by Islamic terrorists.
Paragraphs 111 to 113 contain allegations relating to Mr Faruqi’s association with Senator, Ms Lee Rhiannon. Paragraph 112 makes certain allegations against Ms Rhiannon and paragraph 113 alleges that Mr Faruqi’s reputation was “that of a political activist with no greater credibility than that of Rhiannon”.
Paragraphs 114 to 118 contain allegations concerning statements made by Mr Faruqi about Mr Latham. It is alleged that the effect of those statements was that anything said by Mr Latham about Mr Faruqi could not or would not have caused any hurt or embarrassment to Mr Faruqi. It is also alleged that people who were aware of Mr Faruqi and his attacks on Mr Latham would not have attached any weight to what Mr Latham said about Mr Faruqi.
Paragraphs 119 to 125 allege that Mr Faruqi republished the alleged defamatory imputations in various ways. Paragraphs 126 to 129 allege that Mr Faruqi somehow abandoned his claim that he was defamed by reason of some things said in a letter written by his solicitor. Paragraphs 130 and 131 allege that Mr Faruqi is not entitled to aggravated damages because Mr Faruqi’s criticisms of Mr Latham were more intemperate than Mr Latham’s “attack” upon Mr Faruqi.
MR LATHAM’S CENTRAL HYPOTHESIS
As has already been touched on in the course of summarising Mr Latham’s defence, there is a central hypothesis which underpins all of Mr Latham’s positive defences. That hypothesis is, in summary, that so-called “anti-white racism” – conduct which is calculated to demonise and dehumanise “white people” – supports, foments, encourages and facilitates Islamic terrorism. Once that hypothesis is accepted, according to Mr Latham, the alleged defamatory imputations are justified, reasonable and comprise an honest opinion or fair comment. That is because, on Mr Latham’s case, Mr Faruqi is an anti-white racist; ergo he knowingly assists terrorist fanatics who want to kill innocent people in Australia, condones the murder of innocent people by Islamic terrorists, and encourages and facilitates terrorism.
Various parts of Mr Latham’s defence are said to provide the foundations for the establishment of the validity of this hypothesis. Part E, for example, purports to establish the historical phenomenon that the vilification of a particular racial or religious group facilitates and encourages acts of violence against the vilified grouping. Part F appears to refer to what are said to be more contemporary examples of that phenomenon involving Islamic terrorism. The unstated premise that appears to underlie Part F is that those recent acts of Islamic terrorism involved the targeting of “white people”. Parts D and FA allege, in effect, that Mr Faruqi is an “anti-white racist” – someone who engages in conduct which is calculated to demonise and dehumanise “white people”. It follows, according to Mr Latham, that Mr Faruqi supports, foments, encourages and facilitates Islamic terrorism.
Mr Latham’s positive or substantive defences all hinge, in one way or another, on the validity of this central hypothesis. If the hypothesis is flawed and unreasonable, his defences, as presently pleaded, are also unreasonable and likely to fail. There are other issues with parts of Mr Latham’s pleading. The validity of his central hypothesis, however, is the primary issue in considering Mr Faruqi’s strike out application.
STRIKING OUT PARTS OF A PLEADING – RELEVANT PRINCIPLES
Rule 16.02 of the Rules provides, amongst other things, that a pleading, including a defence must: be as brief as the nature of the case permits; identify the issues that the party wants the Court to resolve; state the material facts on which the party relies that are necessary to give the opposing party fair notice of the case to be made against the party at trial, but not the evidence by which the material facts are to be proved; not contain any scandalous, frivolous or vexatious material; not be evasive or ambiguous or be likely to cause prejudice, embarrassment or delay; not fail to disclose, relevantly, a defence appropriate to the nature of the pleading; and not otherwise be an abuse of the process of the Court. Rule 16.21 in effect provides the remedy of striking out a pleading, or any part of it, which fails to meet any of those requirements.
Contrary to Mr Latham’s submissions, the matters pleaded in Part J of the defence do not raise a reasonable defence to Mr Faruqi’s claim. The allegation of abuse of process is not, in this context at least, akin to a claim of Anshun estoppel. Nor does it amount to a claim of “unclean hands” which could reasonably be said to defeat Mr Faruqi’s claim to an injunction if he otherwise makes out the elements of his claim in defamation. The fact that some courts or tribunals in other jurisdictions, in a different procedural context, and in very different circumstances, might have dealt with arguments relating to abuse of process at the final hearing is neither here nor there. In any event, as has already been noted, even if it may, in some circumstances, be permissible to raise a claim of abuse of process in a defence to a claim, that is plainly not an appropriate course in this proceeding and is likely to cause significant prejudice, embarrassment and delay.
It follows that Part J of the defence should be struck out.
SHOULD OTHER SPECIFIC PARAGRAPHS OF THE DEFENCE BE STRUCK OUT?
There were three other miscellaneous paragraphs of the defence that Mr Faruqi claimed should be struck out.
Paragraphs 3 and 4 of the defence define the meaning or sense of the word “brown” and “Person of Colour” when used by Mr Faruqi in his “public utterances”. It is doubtful that the striking out of those paragraphs of the defence would have been warranted if the balance of the defence remained. Given the findings that have already been made concerning the striking out of Parts D, F and FA and Schedule II of the defence, however, paragraphs 3 and 4 are essentially irrelevant.
In paragraph 14 of the defence, Mr Latham “objects in point of law that subparagraph 6(a) of the Amended Statement of Claim is embarrassing and incompetent”. That is said to be because it contains “two defamatory meanings” and is therefore “bad for duplicity”. The two meanings are said to be that Mr Faruqi “assists terrorist fanatics who want to kill innocent people in Australia” and that he does so “knowingly”. Mr Faruqi contended that paragraph 14 should be struck out because it is clear that the imputation pleaded by him in paragraph 6(a) is capable of only one meaning. Paragraph 14 therefore does not raise a reasonable defence.
There is merit in Mr Faruqi’s submission in that regard. In any event, Mr Latham filed an interlocutory application in which he sought orders including that paragraph 6 be struck out. His contention that paragraph 6(a) should be struck out has been dealt with and rejected for the reasons already given. The video was capable of conveying the defamatory imputation pleaded in paragraph 6(a). The question whether that meaning or imputation was in fact conveyed is a matter for trial. Mr Latham did not specifically or explicitly raise the duplicity argument in the context of his strike out application, though his submissions did focus on the word “knowingly” in paragraph 6(a). If Mr Latham wanted to “object in point of law” to paragraph 6(a) on the basis of duplicity, he should have done so in the context of the interlocutory application. In those circumstances, paragraph 14 should be struck out as not raising a reasonable defence, or on the basis that it is likely to cause embarrassment.
SHOULD MR LATHAM BE GIVEN LEAVE TO RE-PLEAD?
Where the Court strikes out a pleading, or part of a pleading, it undoubtedly has the discretion to grant leave to re-plead. The question arises whether, in all the circumstances, Mr Latham should be permitted to re-plead those parts of his defence that have or will be struck out. Mr Faruqi did not consent to the grant of leave to re-plead and indeed advanced some reasons why leave should not be granted. Those reasons all appeared to flow from a degree of scepticism about whether the product of the grant of such leave would be any better than the original pleading, or would otherwise comply with the Rules. Perhaps not surprisingly, Mr Faruqi was concerned about the prospect of having to be put to the trouble and expense of a further strike out application and the inevitable further delays that such an application would cause.
It should, however, perhaps be borne in mind that Mr Latham has not previously amended his defence, other than as a consequence of the filing of an amended statement of claim by Mr Faruqi. This is also the first strike out application. Perhaps more significantly, while large parts of the defence have or will be struck out, the prospect or possibility that Mr Latham will be able to properly re-plead some of the substantive defences cannot be entirely excluded. It can also be expected that if Mr Latham takes up the opportunity to re-plead his defence, he will pay heed to the reasons why parts of his existing defence have been struck out. It can be expected that he will not make the same mistakes twice, and that his re-pleaded defence will be clear, concise, unambiguous, and only raise defences that are reasonably arguable and appropriate having regard to the nature of the case. He will, in other words, ensure that his re-pleaded defence complies with the Rules and the overarching purpose identified in s 37M of the Federal Court Act. If it does not, and parts of it are again struck out, he should not expect that he will necessarily be given another opportunity.
In all the circumstances, Mr Latham should be granted leave to re-plead on this occasion.
THE APPROPRIATE STRIKE-OUT ORDER
As was noted earlier, if substantial parts of a pleading are struck out, the Court may strike out the entire pleading on the basis that the residue would be confusing. That raises the question whether, in light of the extensive parts of Mr Latham’s defence that are to be struck out, the preferable course would be to strike out the entire defence, particularly in light of the fact that Mr Latham is to be given leave to re-plead.
In his interlocutory application, Mr Faruqi sought only to have the following paragraphs of the defence struck out: 3, 4, 14, 27, 28, 29 to 32B, 33 to 55, 55A to 55C, 56 to 61, 72, 73 to 75, 76 to 79, 80 to 82, 83 to 85, 87 to 92 and 94 to 131. For the reasons that have been given, it is appropriate to strike out all of those paragraphs. That would leave very few paragraphs remaining. The remaining paragraphs include, perhaps most significantly, paragraphs 62 to 68 which comprise Mr Latham’s specific response to Mr Faruqi’s pleaded allegations.
The difficulty is that if only those paragraphs of the defence that were specifically objected to by Mr Faruqi are struck out and if, as expected, Mr Latham takes up the opportunity to re-plead, the resulting amended defence will undoubtedly be confusing and unwieldy. That will particularly be the case if, as is customarily the case, the struck out paragraphs are denoted by strike-throughs and the new paragraphs are denoted by underlining. Even if that is not done, the paragraph numbering will be out of order if, as hoped or expected, the struck out paragraphs outnumber the new paragraphs inserted in the defence. Some difficulties would also most likely be encountered in marrying-up the new paragraphs with the old.
In all the circumstances, and, in particular, in light of the grant of leave to Mr Latham to re-plead, the preferable course is to strike-out the entire defence so that Mr Latham can start from scratch. That will hopefully give rise to a more concise and comprehensible pleading that both complies with the Rules and the overarching purpose in s 37M of the Federal Court Act. It should perhaps be noted that effectively the same approach was taken by Drummond J in similar circumstances in Gold Coast City Council v Pioneer Concrete.
ORDERS AND DISPOSITION
Mr Latham’s defence should be struck out in its entirety. He should, however, be granted leave to re-plead. It would be appropriate to order that his defence be filed within 28 days. The parties should arrange for the proceeding to be listed for a further case management hearing on a suitable date shortly after that 28 day period so that further orders can then be made to progress the matter.
I certify that the preceding two hundred and one (201) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 30 August 2018
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