Hive and Wellness Pty Ltd v Mulvany (No 2)
[2019] VSC 757
•21 November 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2018 02367
| HIVE & WELLNESS AUSTRALIA PTY LTD (formerly Capilano Honey Ltd ) | First Plaintiff |
| - and - | |
| BEN McKEE | Second Plaintiff |
| v | |
| SIMON MULVANY | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 November 2019 |
DATE OF JUDGMENT: | 21 November 2019 |
CASE MAY BE CITED AS: | Hive & Wellness Pty Ltd & Anor v Mulvany (No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 757 |
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PRACTICE AND PROCEDURE – Application by defendant for trial before a judge and jury under r 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – No prima facie right to trial by jury given late application – Legal and factual issues complex – Application refused.
DEFAMATION – Summary judgment application – Whether defences would have reasonable prospect of success at trial – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 applied – Defences of justification in the defence with respect to the plaintiffs’ defamation claims not open on the particulars provided – Struck out with no leave to re‑plead – Defences with respect to the plaintiffs’ injurious falsehood claim – Summary judgment application adjourned pending provision of evidence for trial.
DEFAMATION – Striking out – Whether defendant actuated by malice – Post publication conduct may be taken into account – Herald & Weekly Times v McGregor (1928) 41 CLR 254, referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms M Marcus | Addisons Lawyers |
| The Defendant in person |
HER HONOUR:
Introduction and background
The plaintiffs are a major producer of honey in Australia and its Chief Executive Officer. The defendant is a bee keeper who, among other things, operates a website ‘Save the Bees’.
This proceeding was transferred from the Supreme Court of New South Wales in 2018. The plaintiffs claim that the defendant is liable for injurious falsehood and for defamation (with respect to the second plaintiff) by reason of numerous publications made by the defendant, including publications on various social media platforms, regarding the quality and provenance of honey produced by the first plaintiff under various brand names. More detail regarding the claims and defences in the proceeding, and the lengthy history of this proceeding are to be found in a judgment published earlier in 2019.[1]
[1][2019] VSC 273 [1]–[8]
Before me is an application by the plaintiffs to strike out parts of the defendant’s third further amended defence filed on 7 June 2019 (‘defence’), an application by the defendant to have the trial proceed before a judge and jury of six, and an application by the defendant to strike out certain particulars and parts of the prayer for relief of the amended statement of claim filed 16 August 2017 (‘statement of claim’).
The defendant is currently self-represented, although his pleadings have been drawn by lawyers. He hopes to obtain legal representation prior to trial. The trial is fixed to proceed on 23 March 2020 on an estimate of three weeks.
Application for the trial to proceed before a judge and jury of six
No application was made by the defendant to have the trial conducted before a judge and jury when the proceeding was before the Supreme Court of New South Wales. No application was made after the proceeding was transferred to this Court on 30 May 2018, until the filing of the defendants’ summons on 11 July 2019, although the issue was raised in passing at a directions hearing in July 2018. Since that time there have been numerous court appearances with respect to various interlocutory matters.
The mode of trial of any proceeding in contract or tort is governed by r 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’), as follows:
(1)A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if—
(a)the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried;[2] and
[2]The procedure in New South Wales appears to be different. In a directions hearing on 20 July 2018, counsel for the plaintiffs noted that in New South Wales, any party could elect for trial by jury up to the date of trial.
(b)the prescribed fees for the purposes of section 24 of the Juries Act 2000 are paid.
(2)Any other proceeding shall be tried without a jury, unless the Court otherwise orders.
(3)Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.
(4) Trial with a jury shall be with a jury of six.
Given the transfer of the proceeding to Victoria after the close of pleadings, the parties cannot comply with the time limits in r 47.02(1)(a) of the Rules. However, the strict time limits in that Rule suggest an intention on the part of Parliament that the mode of trial should be determined at an early stage of the proceeding.
No material evidence in support of the application for a jury trial was adduced by the defendant. In his written submissions, the defendant stated: ‘There is a huge public interest in this matter and it has to go before a jury to maintain the public’s confidence in the Court.’ Further, in his submissions during the course of the hearing of the applications, the defendant told the Court that he wanted the trial to be held before a jury because a jury would be more representative of community opinion regarding the issues raised by this proceeding, such as food quality and safety, than a judge. Furthermore, he submitted that a jury would be more likely to recognise the second plaintiff’s defamation claim for what it is, that is, a tactic to stifle his freedom of speech.
As noted in my earlier decision of Humphris v ConnectEast (No 2) (‘Humphris’),[3] the following principles apply to application of the current kind:
[3][2016] VSC 419.
(a)the court has an overriding discretion to determine the mode of trial, regardless of the wishes of the parties;
(b)the discretion may be exercised whenever it is warranted by the dictates of justice;
(c)the party applying for the order bears the onus;
(d)there must be good cause before the court will deprive a party of the prima facie right to a jury trial;
(e)the range of considerations which the court may consider is unfettered, although the following considerations are relevant:
(i)the complexity of factual matters and legal issues relating to liability;
(ii) the complexity of the jury’s task in assessing damages;
(iii) the potential duration of the trial;
(iv) the stage of the proceeding has reached;
(f)the fact that a litigant is self-represented is a factor that may be taken into consideration in assessing whether it is viable for the litigant in person to conduct a trial with a jury;
(g)the likelihood of the jury frequently having to be sent out while legal argument proceeds on objections;
(h)the volume of written material to be copied for and considered by the jury;
(i)whether it would be unusual for a case of the kind being considered to be tried by jury (cf personal injury, medical negligence and defamation cases where it is not uncommon for the matter to be tried by jury); and
(j)savings of time and efficiency will rarely be so significant as to warrant the order being made without more.[4]
[4]Ibid, [11].
In Humphris,[5] I also referred to the principle that a party which has properly invoked its entitlement to trial by jury ought not be lightly deprived of that entitlement. In Humphris,[6] the plaintiffs, who were self-represented, had nominated trial by jury in the originating process.
[5]Ibid.
[6]Ibid.
In my view, the application that the trial be heard before a judge and jury should be refused. First, this is not a case where the defendant has a prima facie entitlement to trial by judge and jury, by reason of the operation of the Rules. Accordingly, the burden of persuading me that the mode of trial chosen by the plaintiffs ought to be departed from rests with the defendant. I am not so persuaded. In particular, having regard to the principles enumerated in paragraph 9 above, the following matters are relevant:
(a) the complexity of the factual matters and legal issues which arise in the proceeding. While it is common place for defamation proceedings to be conducted before juries, and for juries to deal with complicated questions of causation, it is noteworthy that the plaintiffs seek relief in respect of over one hundred separate publications;
(b) in the event that the first plaintiff establishes its claim for injurious falsehood, the question of the calculation of damages is quite complex, concerning not only the calculation of lost revenue, but also damage to the value of the first plaintiff’s consumer brands;
(c) the trial has been set down for an estimated fifteen days in March 2020. I accept that if the proceeding is conducted before a jury, the duration of the trial would be substantially longer than currently estimated, particularly if the defendant continues to represent himself;
(d) the proceeding has been on foot for nearly three years. It has been delayed by a series of adjournments and interlocutory disputes, both in this Court and in New South Wales;
(e) while the fact that the defendant is currently self-represented is not fatal to any application for the trial to be conducted before a jury (the trial in Humphris[7] was ultimately conducted before a judge and jury), it is a relevant factor, given the complexity of the factual and legal issues involved in the proceeding;
(f) the history of the proceeding, including the disputes about pleadings and the scope of the issues to be dealt with in this proceeding suggests that there is a likelihood that the jury would have to be sent out frequently to enable legal argument to proceed regarding objections to evidence. Given that it is apparent from the manner in which the defence has been conducted to date that the defendant is keen to press his concerns about the quality and safety of honey sold in Australia generally, objections to evidence on the grounds of relevance, and disputes regarding the qualification of experts are highly likely; and
(g) the sheer number of publications means that the jury will need to have a substantial volume of written material before it, and will have to answer a large number of questions regarding the factual issues in the proceeding.
[7]Ibid.
Further, in relation to the defendant’s submission that a jury will be more representative of the community when it comes to concerns about food safety, and in detecting what the defendant considers to be the plaintiffs’ ulterior motives in pressing the second plaintiff’s defamation claim, I understand why the defendant may hold that view, but do not consider that this consideration outweighs the other matters referred to above. In any event, judges are, like everyone else in the community, consumers of food products, and no doubt are well attuned to determining whether the legal process is being utilised for a purpose other than the strict vindication of legal rights.
Accordingly, the application in paragraph 1 of the defendant’s summons filed 11 July 2019 is refused.
Strike out/summary judgement application – plaintiffs’ summons
In their summons filed 11 July 2019, the plaintiffs seek the following relief:
(1)That the Court order summary judgment in the proceeding in relation to the defendant’s defence of justification in the Third Further Amended Defence filed on 7 June 2019 (“Third Further Amended Defence”) at paragraphs 113A, 113B, 114A and subparagraphs 116(b), 116(d), 116(e) and 116(g).
(2)In the alternative, strike out the following paragraphs of the Third Further Amended Defence with no leave to the defendant to re-plead:
(a)the paragraphs concerning the defendant’s defence of justification to the defamation cause of action at paragraphs 113A, 113B and 114A;
(b)the subparagraphs concerning the defendant’s defence of justification to the injurious falsehood cause of action at subparagraphs 116(b), 116(d), 116(e) and 116(g).
(3)In the alternative, that the Court strike out the following particulars of the Third Further Amended Defence:
(a)The particulars of justification at subparagraphs 113A(A) to 113A(G);
(b)The particulars of justification at subparagraphs 113B(A) to 113B(C);
(c)The particulars of justification at subparagraphs 114A(A) to 114A(C);
(d)The particulars of justification at subparagraphs 116(b)(A) to 116(b)(C);
(e)The particulars of justification at subparagraphs 116(d)(A) to 116(d)(C);
(f)The particulars of justification at subparagraphs 116(e)(A) to 116(e)(C);
(g)The particulars of justification at subparagraphs 116(g)(A) to 116(g)(C).
The plaintiffs rely upon s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’), which provides as follows:
Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c)on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
Rule 23.02 of the Rules provides as follows:
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
The test under s 63 of the CPA is governed by the statement of the Court of Appeal in the oft-cited decision of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[8] as follows:
(a)the test for summary judgment under section 63 of the CPA is whether the respondent to the application for summary judgment has a ‘real’ as opposed to ‘fanciful’ chance of success;
(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[9]
[8][2013] 42 VR 27.
[9]Ibid [35].
Further, Neave JA (who otherwise concurred with the statements made by the majority above) stated as follows:
… I am concerned that undue emphasis on the caution with which a Court must exercise the power of summary dismissal runs the risk of reinforcing the historical approach to summary dismissal and may result in the legislative liberalisation of the test in s.63 have little impact in practice. That approach would be inconsistent with the objective of reforming the law relating to summary judgment, expressed in s.1(2)(e) of the Civil Procedure Act, and with the requirement that the Court give effect to the over-arching purposing of [the CPA], imposed by s.8.[10]
[10]Ibid [41].
In contrast with s 63 of the CPA, r 23.02 of the Rules is concerned with the sufficiency of a pleading rather than the viability of a claim.
The paragraphs sought to be struck out are new defences of justification introduced by the defendant in his third further amended defence filed on 7 June 2019. These defences were introduced after I made orders on 16 May 2019 granting the plaintiffs summary judgment with respect to a substantial part, but not all of the defendant’s defence of qualified privilege at common law, and gave the defendant leave to file a further defence.
In those reasons, I stated that the defendant should have one last opportunity to raise any common law or statutory defences to the second plaintiff’s claims in defamation. The defendant took this opportunity to plead defences of justification with respect to publications which are said by the second plaintiff to assert:
(a) that he, as the CEO of the first plaintiff, is dishonest in that he has permitted the first plaintiff to sell inferior untested imported honey, thereby putting the reputation of Australia as a producer of honey at risk; and
(b) that he, as the CEO of the first plaintiff, deliberately misleads consumers to believe that honey marketed under the ‘Allowrie’ and ‘Smiths’ brands does not contain imported honey.
Further, in his defence of the first plaintiff’s injurious falsehood claim, the defendant has pleaded that certain representations said to have been made by the defendant are not in fact false statements.
The plaintiffs submitted that they should have summary judgment with respect to these paragraphs of the defence, as the particulars relied upon by the defendant cannot support either the defence of justification with respect to the defamation claims, or, with respect to the injurious falsehood claim, an assertion that the statements of and concerning the first plaintiff’s goods and business were not false. Understandably, given that the defendant represented himself at the hearing of the applications, and did not draw the defence, he made no submissions in the defence of his pleading.
The relevant paragraphs of the defence are paragraphs 113A, 113B, 114A and 116(b), (d), (e) and (g) of the defence. Paragraphs 113A, 113B and 114A concern the defamation claim, while paragraphs 116(b), (d), (e) and (g) concern the injurious falsehood claim.
Paragraph 113A of the defence responds to an allegation in the statement of claim that certain publications by the defendant carry the imputation that the second plaintiff, as CEO of the first plaintiff, is dishonest in that he has permitted the first plaintiff to use inferior untested imported honey, thereby putting the reputation of Australia as a producer of honey at risk.
The particulars to paragraph 113A provide as follows:
AThe adulteration of honey by syrups or other imitation honey blending agents is a form of food fraud where those agents are misrepresented to a buyer as being pure honey.
BProducing and selling a honey product which is constituted, in whole or in part, by the food fraud of syrups or other imitation honey blending agents that have been misrepresented as pure honey, puts at risk the reputation of the producer and/or country of producers of which the producer is part.
CNuclear Magnetic Resonance (NMR) is a testing method which can detect the adulteration of honey by syrups or other imitation honey blending agents.
DAt the time of the publications, the First Plaintiff had produced and sold “Allowrie” brand honey, a significant part of which was constituted by honey represented to be imported honey, and which was untested by the NMR method.
EThe Second Plaintiff, as the CEO of the first plaintiff, permitted the conduct of particular D.
FThe conduct in particulars D and E is dishonest in that it does not meet the standards of ordinary decent people.
GBy reason of the particulars A - F, the Second Plaintiff, as CEO of the First Plaintiff, is dishonest in that he has permitted the First Plaintiff to use inferior untested imported honey, thereby putting the reputation of Australia as a producer of honey at risk.
The plaintiffs submitted that the substance of the above particulars is that by not undertaking NMR testing, the first plaintiff did not meet the standards of ordinary decent people, thus the second plaintiff was dishonest. The plaintiff submitted that these particulars fail to provide the necessary particulars of the second plaintiff’s state of mind, as required by r 13.10(3)(b) of the Rules.[11] Further, the defendant provides no details of the facts, matters and circumstances that the defendants will rely upon to establish that NMR testing can detect adulteration of honey (this being a matter of some controversy between the parties, and in the honey industry generally). Finally, without more, an allegation that the first plaintiff used imported honey not tested by the NMR method cannot lead to a conclusion that the first plaintiff sells “inferior untested imported honey”.
[11]Rule 13.10(3)(b) of the Rules provides that “...Every pleading shall contain the necessary particulars of any ... disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice”.
Paragraph 113B of the defence responds to allegations in the statement of claim that various publications by the defendant carry the imputation that the second plaintiff, as CEO of the first plaintiff, deliberately misleads consumers to believe that honey marketed under the ‘Allowrie’ and ‘Smiths’ brands does not contain imported honey.
The particulars to paragraph 113B provide as follow:
AClear, accurate, specifically named country of origin labelling of the imported portion of honey products sold in Australia enhances consumers not to believe that a honey product does not contain imported honey.
BThe Second Plaintiff, as CEO of the First Plaintiff, deliberately chose not to disclose clear, accurate, specifically named country of origin labelling of the imported honey portion of the “Allowrie” and “Smiths” honey brands, or either of them.
CBy reason of particulars A and B, the Second Plaintiff, as CEO of the First Plaintiff, deliberately misleads consumers to believe that honey marketed under the “Allowrie” and “Smiths” brands does not contain imported honey.
The plaintiffs submitted that the particulars do not address the ‘sting’ of the pleaded imputations but rather address a separate issue. The particulars seem to assume that the first plaintiff did in fact market honey products with labels that disclosed the presence of imported honey, but then make a leap from asserting that the labelling was inadequate, to an assertion that the second plaintiff deliberately misled consumers, which is a vague and illogical allegation on its face.
Paragraph 114A of the defence responds to the allegation that certain publications made by the defendant carry the imputation that the second plaintiff is dishonest, relying upon the particulars to paragraphs 113A and 113B of the defence, as set out above. The plaintiffs submit that this pleading fails to meet the requirements of r 13.10(3) of the Rules.
Paragraph 116(b) pleads that the representation that the plaintiffs deliberately misled consumers to believe that honey marketed under the ‘Allowrie’ and ‘Smiths’ brands does not contain imported honey, which is alleged to be ‘not false’.
The particulars to paragraph 116(b) were identical to those relied upon in paragraph 114A of the defence.
Paragraph 116(d) also relies upon the particulars to paragraph 114A to assert that the representation that the first plaintiff is dishonest in that it does not meet the standards of ordinary decent people is not false.
Paragraph 116(e) asserts that the representation that the first plaintiff illegally imports and sells honey is not false, relying upon the following particulars:
AIn or about 2016, at the Spudshed store in Wanneroo in the State of Western Australia, the First Plaintiff caused its subsidiary brand “Sunny Flo” 1kg pail honey product to be sold without lawful packaging disclosure about the country of origin of that product.
BThat “Sunny Flo” honey product was constituted in part by imported honey.
CBy reason of particulars A and B, the First Plaintiff illegally imports and sells honey.
The plaintiff submitted that the particulars are inadequate to support a defence that the pleaded representation is not false, as it relies upon:
...one instance of inadvertent mislabelling which has been detailed in the plaintiffs’ further and better particulars as well as a public statement issued by the plaintiffs. In short, the first plaintiff acquired a business and inherited labels for a “Sunny Flo” branded product, which were inadvertently and incorrectly used for a period of about two days in May 2016.
Paragraph 116(g) relies upon the particulars to paragraph 116(e), as set out above, to support its assertion that the representation that the first plaintiff is in breach of labelling laws is not false.
I agree that the allegations in the defence, insofar as they seek to justify the truth of the defamatory imputations pleaded by the second plaintiff, ought to be struck out, on the basis that the particulars provided cannot, as a matter of logic, support the allegations made in these paragraphs of the defence. Further, I agree that, insofar as the plaintiffs, or either of them, are accused of dishonesty, the defence does not specify the facts, matters and circumstances why it is said that they are dishonest. Simply to state that the plaintiffs do not meet the standards of ordinary decent people is far too vague and general to support an allegation of dishonesty. However, I will not go so far as to grant summary judgment. Rather, I propose to strike out the relevant paragraphs of the defence (being paragraphs 113A, 113B and 114A of the defence), and, given the stage the proceeding has reached, will not grant leave to re-plead. If the defendant wishes to pursue a defence of justification with respect to the second plaintiff’s defamation claim, or pursue an allegation that the plaintiffs are in fact dishonest, he will need to make a fresh application to amend the defence, supported by an affidavit which, given the stage this proceeding has reached, provides the evidence in support of his allegations. While it would not be necessary for the defendant to adduce evidence that would result in him being successful at trial, the evidence would need to be sufficiently targeted and cogent to persuade me (or any other judicial officer) that the proposed defences have a reasonable prospect of success at trial. Given the stage that the proceeding is at, in that the parties will be required to provide their lists of witnesses, outlines of evidence, and expert reports soon, establishing a higher evidentiary threshold for any application for amendment will not impose an undue burden upon the defendant.
However, I will not strike out paragraphs 116(e) and (g) of the defence, at least not at this stage. The plaintiffs say that the defendant’s reference to one isolated incident of sale by the first plaintiff of non-compliant honey prove the truth of an allegation that the first plaintiff currently imports honey without disclosing that fact on its product labels, thus misleading consumers and failing to comply with Australian labelling laws. Counsel for the plaintiffs describe this pleading as an example of the ‘defendant’s tendency to overreach based on limited material’.
That may well be the case, and, if no further particulars of faulty labelling are identified by the defendant prior to trial, one might expect that the defendant will have a great deal of difficulty in making good that defence. However, it is not beyond the realms of possibility that the defendant will be able to identify further instances of sale by the first plaintiff of non-compliant products. It seems to me to be more appropriate to revisit the question of the adequacy of the defendant’s particulars after the parties have put on their evidence. The order of and the manner in which the parties will be required to put on their evidence will be the subject of discussion at the forthcoming directions hearing. However, I agree with the plaintiffs that the particulars to paragraph 116(b) do not support the allegation in paragraph 116(d) that the representation that the first plaintiff and its officers are dishonest.
Accordingly, I will adjourn the plaintiffs’ application with respect to the particulars to paragraphs 116(e) and 116(g) of the defence until a date to be fixed.
Particulars of malice – defendant’s summons
In his summons filed 11 July 2019, the defendant seeks to strike out some of the particulars to the allegation that, in making the publications said to render him liable for injurious falsehood, the defendant was actuated by malice, that being a necessary element of the tort of injurious falsehood.[12] The particulars fall into two categories:
(a) particulars referring to the alleged misrepresentations by the defendant of media reports regarding the composition and quality of Australian honey, which post-dated the making of the representations which are the subject of the amended statement of claim; and
(b) particulars making allegations that the defendant has sought and/or obtained a financial benefit by making public appeals for funding of his defence in this proceeding. This pleading is based upon an allegation to the effect that while the defendant has raised over $71,000 from the public for funding testing of honey, he has not relied upon any testing for the purpose of preparing his defence. This allegation is disputed by the defendant, who gave evidence of some expenditure on the testing of honey by a laboratory.
[12]Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388.
The defendant advanced no argument as to whether the particulars in (a) above are permissible. The plaintiffs contend that the particulars of malice which relate to post publication conduct are permissible, referring to the decisions of Herald & Weekly Times v McGregor[13] and Tankard v Chafer,[14] which confirm that the conduct of a defendant subsequent to the relevant publication may be taken into account in determining the state of mind of the defendant at the time the publication was made.
[13](1928) 41 CLR 254, 265 per Isaacs J.
[14][2005] VSC 171 per Gillard J.
I agree that post‑publication conduct is admissible for the purposes of establishing malice, and the particulars ought to be permitted to stand. As for the particulars regarding the defendant’s alleged purpose in making the publications (that is, that he has been ‘substantially motivated in making publications concerning the plaintiffs by increasing his notoriety and publicity on his social media platforms in order to obtain a personal commercial and/or financial advantage’), these particulars may well suffer from the same ‘overreach’ said by the plaintiffs to characterise the defendant’s conduct. However, it seems to me that those matters are questions for trial, along with the form of relief claimed by the plaintiffs in their prayer for relief. Accordingly, the applications in paragraphs 2 and 3 of the defendant’s summons filed 11 July 2019 will be dismissed.
I shall hear from the parties on the proposed form of order to give effect to these reasons, and regarding the directions for the future conduct of the proceeding in the lead up to trial.
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