Greenfield v Fairfax Media Publications Pty Ltd (No 2); Greenfield v Australian Broadcasting Corporation

[2015] NSWSC 373

Supreme Court

New South Wales

Medium Neutral Citation:	Greenfield v Fairfax Media Publications Pty Ltd (No 2); Greenfield v Australian Broadcasting Corporation [2015] NSWSC 373
Hearing dates:	27 February 2015
Date of orders:	27 February 2015
Decision date:	27 February 2015
Before:	McCallum J
Decision:	The application to have the words objected to struck out of the defence in each proceeding is refused.
Catchwords:	DEFAMATION – procedure – pleadings – objection to form of defence – where defence maintains objection to capacity – whether defendant entitled to plead back the plaintiff’s imputations – where particulars of truth set out in general narrative and discursive form relating to imputations as a whole
Legislation Cited:	Defamation Act 1974 (NSW) Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 28.2
Cases Cited:	Besser v Kermode [2011] NSWCA 174; 81 NSWLR 157 Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13
Category:	Procedural and other rulings
Parties:	2014/197994 - Darren Greenfield (Plaintiff) Fairfax Media Publications Pty Ltd (Defendant) 2014/198004 - Darren Greenfield (Plaintiff) Australian Broadcasting Corporation (Defendant)
Representation:	Counsel: G McGrath (Plaintiff in each proceeding) ATS Dawson (Defendant in each proceeding) Solicitors: Taylor & Scott Lawyers (Plaintiff in each proceeding) Banki Haddock Fiora Lawyers (Defendant in each proceeding)
File Number(s):	14/19799414/198004
Publication restriction:	None

Judgment

1. HER HONOUR: Before the Court are two sets of proceedings commenced by Mr Darren Greenfield. In one set of proceedings, the defendant is Fairfax Media Publications Pty Ltd. In the second, the defendant is the Australian Broadcasting Corporation.

2. The proceedings are in the Defamation List today for argument as to three objections taken by the plaintiff to the form of the defences filed by the defendant.

3. The three objections arise in the Fairfax proceedings. In the proceedings against the ABC, two of the same three objections are taken and argument has been heard together. It is convenient to determine the objections in both proceedings at the same time.

4. The first objection raises an interesting question as to the requirement of temporal accuracy of a pleading. On 4 November 2014, I determined objections taken by the defendant in the Fairfax proceedings to the form of imputations pleaded by the plaintiff. It is not clear, partly because the ex tempore judgment I gave on that occasion has not yet been published, whether the judgment records that as having been a determination of a separate question under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) or whether I determined an application by the defendant to have the relevant imputations struck out as embarrassing under r 14.28.

5. Either way, Mr McGrath, who appears for the plaintiff, submits that following my determination of those objections, it is not open to the defendant to plead (as it has) that the matter complained of "is not reasonably capable of conveying" the imputations in question.

6. Mr McGrath submits that a pleading in that form entails the vice of seeking to plead capacity issues that have already been determined against the defendant.

7. Mr McGrath submitted that the issue should be determined now, and determined in favour of the plaintiff, so as to strike out the offending words because it raises an important question as to the application of the Practice Note SC CL 4; that is, whether, having regard to the structure of the Practice Note and the matters required to be determined by the Court at the first listing hearing, the Court should approach capacity arguments on the basis that they will ordinarily be understood to determine separate questions under the UCPR.

8. The significance of the different approach of, on the one hand, determining a separate question or, on the other hand, determining a strike-out application as a challenge to an embarrassing pleading is explained in the recent decision of the Court of Appeal in Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 at [20] to [22] in the judgment of Sackville AJA, with whom Barrett and Emmett JJA agreed at [1] and [2] respectively. In particular, his Honour noted that in a case where the defendant had not sought the determination of a separate question, the Trial Judge's determination before trial of a capacity question did not of itself preclude the applicants from contending at the trial that the article was not reasonably capable of supporting the impugned imputations. His Honour continued:

“This is not to say that the trial Judge will be bound to entertain such an application. The point is that the decision of which the applicants complain does not have the finality ordinarily associated with a decision on separate question under r 28.2.”

9. Whilst I accept that the pleadings should ordinarily reflect the real issues in the proceedings and have a measure of temporal accuracy in that respect, the position seems to me to be as contended by Mr Dawson (who appears for the defendant in each proceeding); that is, if the offending words were struck out of the pleading, that might give rise to an apprehension that the defendants had in fact on the pleadings admitted the issue of capacity, which in turn might foreclose the prospect of any appeal against the determination of the primary judge in the event that the proceedings go on appeal. The position is a fortiori if in fact my earlier determination was not of a separate question but of a strike-out application.

10. Mr McGrath responded that the defendants would suffer no prejudice because it would be plain that the offending words had been struck out as a result of an objection by the plaintiff. I do not think that answers the concern.

11. The Court of Appeal would, in the event of an appeal, be required to determine any matters brought before it in accordance with the pleadings. I do not think a defendant can be compelled to file or proceed on a pleading which does not in fact reflect its position that it disputes the capacity of the matter complained of to convey the pleaded imputations.

12. Notwithstanding the fact that the issue of capacity has been determined against the defendant in respect of some imputations in the present case, I think it is important that its pleading reflect its position taken on that issue. Accordingly, I am not persuaded that it is appropriate to strike out the challenged words.

13. The second issue which arises in both the Fairfax proceedings and the ABC proceedings related to the defendant's entitlement to "plead back" the plaintiff's imputations. As correctly noted by Mr McGrath in his submissions, that course was permitted under the Defamation Act 1974 (NSW), but it has been held by the Court of Appeal that it is not a permissible approach under the Defamation Act 2005 (NSW); see Besser v Kermode [2011] NSWCA 174; 81 NSWLR 157.

14. On this issue, there is force in Mr McGrath's submission that the pleadings should reflect the law as it stands. However, as a matter of convenience in the running of a busy List, I have determined that I will defer considering that issue since the same point, that is whether there is some way in which a pleading back defence can stand, notwithstanding the remarks of the Court of Appeal in Kermode, is listed to be heard by me in unrelated proceedings in early April. I propose to allow the plaintiff to revisit this issue after the determination of that argument.

15. The final objection is to the particulars of justification provided by the defendants in each case. Mr McGrath complains that the pleading includes particulars of truth set out in a general narrative and discursive form in respect of all of the imputations as a whole, without helpful distinction as between particular matters relied upon to defend particular imputations. That has the sound about it of a proper complaint, but it is premature to determine it at this stage, since the defendants have consented to provide further particulars to address the concerns raised.

16. Accordingly, the only ruling to be made in respect of the argument heard today is that the application to have the words objected to struck out of the defence in each proceeding is refused.

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Decision last updated: 29 April 2015