JOHNSTON v Aldridge - [2017] SADC 70

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
JOHNSTON v ALDRIDGE
[2017] SADC 70
Reasons for Decision of His Honour Judge Slattery
30 June 2017
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS
In a defamation action, application by the defendant two weeks before trial to amend his defence to plead fresh defences of qualified privilege, truth and reasonable comment and honest opinions.
Held:
1. The proposed pleadings do not address the plaintiff’s pleaded imputations.
2. The proposed pleadings do not comply with the rules as to pleadings and purport to plead inconsistent alternative facts.
3. Because of the lateness of the application, the court should exercise its discretion against the defendant’s application in any event.
4. Application dismissed.
Juries Act s 5; Limitations of Actions Act s 37; Defamation Act s 26, s 27, s 28, s 29; District Court Civil Rules 6DCR 98, 263, 264 and 265, referred to.
Manock v Channel 7 Adelaide Pty Ltd (2006) 95 SASR 462; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Chakravati v Advertiser Newspapers Ltd (1998) 193 CLR 519; Polly Peck (Holdings) plc v Telford [1986] QB 1000; The Advertiser News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; PPG Developments v Capitano (2016) 126 SASR 307, discussed.
Chen v Tse Wai Chen Paul [2000] HKCFAR 83; Lowe v Associated Newspapers Limited [2006] 3 All ER 357; Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728; Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349; David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; Anderson v Nation Wide News Pty Ltd (2001) 3 VR 619; Advertiser-News Weekend Publishing Co Ltd v Manock (2000) 91 SASR 206; Petritsis v Helenic Herald Pty Ltd (1978) 2 NSWLR 174; Fogarty v Nationwide News Ltd and Anor [2005] WASC 2; Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; Tamaya Resources Ltd v Deloitte Touche Tohmatsu (2016) 332 ALR 199, considered.

JOHNSTON v ALDRIDGE
[2017] SADC 70

In his a statement of claim the plaintiff sues the defendant for injunctive relief and damages in defamation arising out of publications by the defendant on his “Facebook wall” of material allegedly containing imputations of and about the plaintiff.
There are two Facebook wall posts the subject of the action. The first was published on or about 25 November 2015 at 1.05 pm. The material concerned long standing differences between the plaintiff and the defendant arising out of disputes between proprietors of permanent fruit and vegetable shops in the northern suburbs of Adelaide and those persons who seek and obtain permission to operate what is commonly described as “pop up” fruit and vegetable markets in broad acres spaces in those same suburbs. These are generally called famers markets. The issue in contention appears to be that those persons operating pop up farmers markets do not sustain the same level of fixed cost overheads as those persons who are the proprietors of permanent shop based fruit and vegetable shops. In colloquial terms, this may appear to create an “uneven playing field” between these two interests.
In paragraph 4 of the statement of claim, the plaintiff pleads as follows:-
4. The First Post included the following words:
4.1 “[The Plaintiff] owner of George and Bens at Pooraka and Golden Fresh Fruit and Veg in the Golden Grove Shopping Centre is intent on closing Farmers markets in Australia through an action I am fighting in the ERD Court”;
4.2 “if I lose the case… thousands of good hardworking Australians will lose, they will lose jobs, farms and businesses…”
4.3 “All avenues to work with [the Plaintiff] since day one have failed due to his refusal to even talk so it is all about closing markets to improve his sales, rather than improve his business model.”
4.4 “If this greedy man wins, the precedent will affect all Farmers Markets, road side vendors, general markets, even community events and fetes.”
The plaintiff alleges that the first post was published to the public at large and in particular to the defendant’s 5974 followers and that by April 2016 it had been “liked” 12,586 times by recipients of the first post, been shared 13,040 times by the recipients of the first post and received in excess of 4,500 comments from recipients of the first post. The plaintiff also alleges that these comments were published on the defendant’s Facebook wall of which the defendant allegedly was aware; were capable of being removed by the defendant; were communicated to a significant number of third party recipients; and that the defendant knew would be communicated to third party recipients. The plaintiff pleads the content of a portion of the comments all of which are highly critical of the plaintiff. The contents of the posts are generally vituperative and do not merit repetition here.
The plaintiff then pleads that separately, alternatively or collectively, the wall posts and their comments in their ordinary and natural meaning were meant and understood to mean that the plaintiff was attempting to close all farmers markets, was a selfish and greedy man and that in attempting to close all farmers markets the plaintiff was a person of contemptible character.
The plaintiff then pleads that on or about 25 February 2016 the defendant published material on his Facebook wall of and concerning the plaintiff. That post included the following words:-
10. The Second Post included the following words:
10.1 “[The Plaintiff] is still trying as hard as he can to shut Farm Direct on what seems like a weekly basis… Since this has started, threats to my family, stall holders and others have continued and still are a regular occurrence, no one wants to pick up the phone mist (sic) nights to threats of rape of his wife or death threats.”
The second post was published to the public at large and in particular the defendant’s 5,974 followers and by 18 April 2016 had been “liked” 149 times, had been shared 41 times and had attracted 31 comments.
The plaintiff pleads that the second post, in its natural and ordinary meaning was meant and understood to mean that the plaintiff has made or encouraged or is likely to make or encourage threats to rape and kill. The plaintiff alleges that each of the imputations pleaded in respect of the first and second post concerned the plaintiff, were highly offensive and false and were defamatory of the plaintiff. As a result, the plaintiff claims that he has been brought into ridicule and contempt, has had his character and reputation injured, has suffered hurt and embarrassment and he will continue to suffer loss and damages. The plaintiff claims compensatory damages for defamation to vindicate his reputation, compensate him for distress and embarrassment caused, to reflect the extent of the publication and the spread of imputations and to be sufficient to convince a person to whom the imputations were published, republished or shared of the baselessness of them. The plaintiff also claims compensation for loss of profit.
The plaintiff also pleads that when the defendant published the material he knew or ought to have known that the imputations would cause persons who read them to think less of and shun and avoid the plaintiff and knew or ought to have known that the imputations were untrue. The plaintiff pleads aggravation because of the defendant’s knowledge that the imputations were untrue, the defendant’s failure to retract, delete or apologise for the publication of the imputations and the defendant’s knowledge that the first and second posts and the comments had been read by numerous recipients and then further disseminated by the recipients. The plaintiff seeks injunctive orders, damages and aggravated compensatory damages, interests and costs.
The defendant filed a defence on 17 June 2016. That defence was prepared by solicitors. The defendant pleaded that he was a frequent candidate for political office and alleges that he has stood as an independent candidate for the legislative council and for various seats in State and Federal by-elections as an independent candidate. He denies that the first post was published to the public at large and was only published to persons who accessed his Facebook wall and to his followers. He admits that he had 5,974 followers. He also admits that readers of the first post shared or commented on it and does not dispute the number of persons who liked, shared or commented upon the first post. The defendant denies that the comments were known to him and they were so numerous as to make it impracticable for him to remove them even if they had been known to him. He denies that the comments were communicated to him and that they were published by their authors to persons who accessed the comments. He denies that he knew that the comments would be communicated to third party recipients but he knew that third parties who accessed part or all of the comments section of the Facebook post would be able to read those comments. He also pleads that it was open to the plaintiff at any time to post or comments of his own in reply to the first post and that any comments made by third parties were persons over whom the defendant had no effective control.
In relation to the comments, the defendant pleads that the publication by the authors of the comments was such that the plaintiff was unlikely to sustain any harm or alternatively the comments were vulgar abuse of the plaintiff by the authors of the comments and they were not defamatory of the plaintiff. He denies the first and second imputations arising from the first posts.
The defendant admitted that he published the second post, he admits that it mentioned the plaintiff but denies that the entirety of it was of and concerning the plaintiff. He challenges the collocation of the words as pleaded by the plaintiff and alleges that the relevant words in paragraph 10 of the statement of claim were separated by three other paragraphs and were therefore not juxtaposed as pleaded by the plaintiff. He denies that the public at large were recipients of the second post and it was only published to persons who accessed the defendant’s Facebook wall and to his followers which number 5,974 persons. He does not put into contention the number of readers of the second post who liked, shared or commented upon it but otherwise denies the allegations of the plaintiff in relation to his second post.
The defendant alleges that the first and second posts were published in the context of the defendant’s frequent past candidacy and then intended future candidacy for political office, were of and concerning an issue of political relevance being the freedom to set up retail outlets to sell produce. He pleads that they were reasonable in the circumstances and were published subject to an implied freedom to discuss issues of political relevance and that it was open to the plaintiff to post a comment or comments in reply at any time. The defendant also alleges that the first and second reports were fair reports on court proceedings instituted by the plaintiff in the Environment, Resources and Development Court in action 118 of 2015.
By application dated 30 March 2017, the defendant applied for the following orders or directions:-
1.   An order allowing the defendant to amend his defence;
2.   Leave to have the trial heard by a jury;
3.   An order allowing for the lodgement of a counterclaim;
4.   Any such further orders as the court deems appropriate.
I heard argument on the application, made orders that the application be dismissed and I made an order for costs to be paid by the defendant. I said that I would later publish my reasons. These are those reasons.
At the time of the application the trial date was set to be heard in this court on 1 May 2017. The application was supported by an affidavit of the defendant sworn 2 March 2017 (FDN 23). This affidavit comprises 6 pages of unnumbered paragraphs. In the second page of the affidavit, the defendant informs the court that the defence filed by solicitors (FDN 8) does not include arguments that he requested that those solicitors include from the time of their retainer. The defendant wished to amend his defence to include those arguments. He asserted later in his affidavit that as a lay person, he was not aware of the time restrictions involved in applying for an amendment of a defence and lodgement of a counterclaim and said that he suffered health issues in January 2017. The defendant does not explain what occurred between 17 June 2016 (the date of (FDN 8) his defence) and the date of his health issues on 2 January 2017.
He also alleged that he had personal items seized (presumably by the police) including business records, electronic records and some of his research documents. The defendant alleged that he is unable to argue his case in light of his current circumstances and in the absence of leave to amend his defence. If he is not able to amend his defence he would be “…dragged even further from being able to assist the courts in relation to determining the dispute in a just and equitable manner…” He asserted that any late application could be compensated for by costs. He also asserted that the amendments are necessary in order to allow the court to determine the real issue in question between the parties. He wishes to make the amendments so as to be able to defend his innocence and to be in the position to prove that everything he said was based on a fair report of legal cases.
The defendant then criticised the content of the defence filed on his behalf by his then solicitors. An issue arose in the course of these further submissions that Mr Aldridge appeared to be waiving privilege intentionally or impliedly. His position on that issue varied from a willingness for the plaintiff to have complete access to his solicitor’s file on the one hand to, on the other, the solicitors not being able to have access to his file because any waiver of privilege by him was unintentional and based upon his own ignorance of his rights. In the end, I did not make an order for access by the plaintiff’s solicitors of the defendant’s former solicitor’s own file that had been subpoenaed to the court. The reasons may be briefly stated. The attitude of the defendant was quite labile. He wished to attack the performance of his former solicitors by criticising the content of his defence which he in turn says that he did not understand. He also did not display to me an understanding of the law of privilege and its complexities. Although I made a number of attempts to explain to him the law of privilege as thoroughly as I could, in the end I was not satisfied that the defendant was thinking clearly and rationally about the issue. When I was asked by the plaintiff for orders for access to the solicitors file that had been subpoenaed to the court, I was satisfied that, properly informed, the defendant did not intend to waive that privilege.
I deal first with paragraph 2 of the interlocutory application (FDN 26). I refuse that application by virtue of the operation of s 5 of the Juries Act.[1]
[1] Section 5—Civil proceedings not to be tried before a jury
No civil trial is to be held before a jury.
Turning to the proposed amendments to the defence that are in contention and require my decision. The defendant applies to amend paragraph 4 to include new paragraph 4c that reads as follows:-
c. Reminds the court that many of those followers do not reside in Australia and that many do not read his posts.
That plea purports to respond to paragraph 5 of the statement of claim which asserted facts about the publication of the first post and those persons who had liked, shared or commented upon the first post.
Proposed paragraph 4c. is not a pleading of a material fact, does not comply with the rules as to pleadings, is not relevant and is not responsive to the plaintiff’s pleadings. In those circumstances I refuse permission to plead in that form.
Paragraph 6 of the defence responds to paragraph 6 of the statement of claim which pleads that the comments published on the defendant’s Facebook site were known to the defendant, were capable of being removed, were communicated to a significant number of third party recipients and the defendant knew that the comments would be communicated to third party recipients. Proposed paragraph 6h reads as follows:-
h.Says that the sharing of his post by others resulted in many individual publishers of the original post, beyond his control.
Proposed paragraph 6i reads as follows:-
i.Says that various others copied the content of the post, therefore becoming the authors of the post, for which he had no control.
It is not necessary for me to decide whether the sharing of posts by others resulted in many individual publishers of an original post beyond the control of the person who first published the post. However, any such allegation about sharing must be supported by particulars about what is being referred to when the topic of “sharing” is identified. There is no particularity of proposed pleading 6h. Also, I consider that the pleading is quite irrelevant and so lacking in particulars that it is in the form of an embarrassing pleading. I reject the application of the defendant in relation to that proposed amendment.
Proposed paragraph 6i is in largely the same form. It suggests that various others, (no particularity as to who those persons are) copied the contents of the posts (there is no particularly as to the content copied) therefore becoming the authors of the post for which he (the defendant) had no control. I consider this pleading is irrelevant for the reasons set out above in relation to proposed paragraph 6h. It is vague for the same reasons namely there is no particularity as to who copied the content of the post, what relevance that has to the proceeding, how it is that if a person copies the content of a post that person then becomes the author of the post over which the defendant has no control. Similar to proposed paragraph 6h of the defence, I consider that this proposed subparagraph is quite irrelevant, is vague because it does not plead who the various others are and it does not particularise how a person copying a post becomes the author of the post. I am consequently of the view that it is an embarrassing pleading.
I also consider that the pleading within both proposed subparagraphs of paragraph 6 is quite meaningless. If the defendant were permitted to plead these subparagraphs, then the defendant would also be permitted to introduce a very broad range of issues for determination by the trial judge which is both inappropriate and irrelevant. I am satisfied that the two proposed subparagraphs do not address the issue pleaded in paragraph 6 of the statement of claim and permission should be refused to amend in those terms for those reasons.
Proposed paragraph 11d. purports to further respond to paragraph 11.1 of the statement of claim. That subparagraph pleads that the second post was published to recipients including the public at large and in particular to the defendant’s 5,974 followers. Paragraph 11a, b and c of the existing defence deny that the public at large were recipients of the second post, that it was published to persons who accessed his Facebook wall and that it was only viewed by 140 people. In proposed paragraph 11d. the defendant wishes to plead that:-
Clearly by his own comment on the post, made it clear the other paragraphs in the post were not about the applicant…
There is no particularity of this pleading; there is no indication of what comment is referred to in the post, how that comment could make clear that some other unidentified paragraphs in the post were not about the plaintiff and how, for example, that pleading is a response to the pleading in paragraph 11.1 of the statement of claim. The formulation of the proposed paragraph 11d is argumentative and for that reason alone it is an objectionable pleading. For all of those reasons I refuse leave to amend in that form.

I turn then to the proposed amendments to paragraph 14 of the defence. There are three proposed further subparagraphs as follows:-
14. The defendant says that the first post and the second post were:
(a)
(b) were published as a retort to posts and media statements by the applicant (qualified privilege).
(c)
(d)
(e)
(f) that the posts were based on the truth to the best of the defendant’s knowledge as his version of events.
(g) were fair and reasonable comments and honest opinions and says there was no intended malice.
In the proposed further pleading, although new subparagraph b was not underlined, it was common ground that this was a further proposed subparagraph of the pleading of paragraph 14.
The plaintiff objected to the application for permission on a number of basis as follows:-
1.   There was no proper explanation for late amendments being put forward and so discretionary considerations militate against a grant of leave;
2.   The pleadings are defective in numerous respects;
3.   The defence is non-responsive to the statement of claim and appears to involve withdrawals of admissions for which no leave is being sought; and
4. Any proposed counterclaim does not plead tenable causes of action which, if they were properly pleaded, are statute bound under s 37 Limitations of Actions Act.
I will deal with this application on a hybrid basis. I intend to deal with the question of the deficiencies submitted to be specific to the proposed amended defence and the alleged pleading deficiencies together. I will then deal with the late application to amend pleadings and the absence of any proper explanation or basis for the leave to amend. I will then deal with the counterclaim.
Existing paragraph 14a pleads that the first and second posts were published in the context of the defendant’s frequent past and continuing candidacy for political office and of and concerning an issue of political relevance being the freedom to set up retail outlets to sell produce. Therefore, the first and second posts were alleged to be reasonable in the circumstances and were published subject to an implied freedom to discuss issues of a political relevance and it was open to the plaintiff to post a comment or comments in reply at any time. It is apparent that this pleading was an attempt to plead what is commonly described as a Lange defence. This defence invokes the implied freedom of political communication arising by implication from the Federal Constitution.[2] No prior objection was raised to that pleading by the plaintiff. That is an issue for trial.
[2] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
The content of proposed paragraphs 14b., 14f. and 14g. do not fall into the category of what is ordinarily understood to be a Lange defence. The pleading in paragraph 14b. suggests that the first and second posts were published as a retort to posts and media statements by the plaintiff. There is no particularity of what posts and media statements had been made by the plaintiff or, for example, how what was published in the first and second posts by the defendant was somehow a retort to those (unspecified) posts and media statements. Although it may be argued that paragraph 14b may refer to discussing issues of political relevance (if that be the case), before permission to plead in that form could be given, it would be necessary for particularity to be provided of the posts and media statements alleged to have been published by the plaintiff. However, the pleading does not appear to be a further particular of a proposed Lange defence. That is because it then contains the words “(Qualified Privilege)”. Therefore, the content of the pleading must be considered in the context of a pleading of qualified privilege. I think that this is the correct approach because the proposed pleading 14f is an attempt to plead a defence of truth and proposed pleading 14g is an attempt to plead fair comment. Those three attempts at a further pleading do not fall within any so called Lange defence and are to be considered separately in accordance with those principles which apply to such pleadings.
The first observation to make is that such a pleading cannot be made generally. If such a pleading is to have any effect, it must relate to the plea of some imputation pleaded by the plaintiff. It cannot be a pleading at large.
In its decision in Manock v Channel 7 Adelaide Pty Ltd.[3] the Full Court of the Supreme Court of South Australia considered an appeal from the decision of a District Court Judge who allowed an appeal from a decision of a Master of the Court on a pleading point concerning whether or not a plea of fair comment must address the imputation pleaded by the plaintiff or whether a different meaning or imputation from that alleged by the plaintiff in the statement of claim may be addressed. The court held that any defence of fair comment must address the imputation pleaded by the plaintiff. In the action, Dr Manock issued proceedings against Channel 7 in respect of a promotion associated with its program called “Today Tonight”. The promotion depicted the host of the program in front of a photo of Dr Manock saying:-
The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one court to the next.
[3] (2006) 95 SASR 462.
In his defamation claim, Dr Manock alleged that:-
The promotion in its ordinary and natural meaning meant and was understood to mean that Dr Manock had deliberately concealed evidence from the trials of Mr Keogh when he was tried for the murder (of his fiancé Anna-Jane Cheney).
In its particulars of defence, the defendant pleaded some material in relation to the trial of Henry Keogh for the alleged murder of his fiancé Anna-Jane Cheney. It then pleaded the appellate process through which the conviction proceeded; petitions of mercy to the Government of South Australia; media coverage associated with the conviction; concerns raised in the media and public and parliamentary debates and comments; a Four Corners program on the ABC concerning the conviction of Mr Keogh; a further forensic investigation; newspaper articles published concerning the conviction of Mr Keogh and the forensic investigation; and a complaint to the Medical Board of South Australia regarding Dr Manock, including his investigations and evidence in the Cheney case. There were then a further 21 subparagraphs of particulars pleaded none of which were directed to or addressed the imputation pleaded by Dr Manock namely that he had deliberately concealed evidence from the murder trial. At [24], Gray and Layton JJ said as follows:-
[24] To make out a defence of fair comment, the following must be established: that the matter or words in question were comment rather than a statement of fact; that the comment related to a matter of public interest; that the comments sufficiently indicated the facts on which it was made; that those facts are true or protected by privilege; and that the comment is fair in the sense that any fair minded person could express the opinion in question honestly.[4]
[4] Chen v Tse Wai Chen Paul [2000] HKCFAR 83; Lowe v Associated Newspapers Limited [2006] 3 All ER 357 at 365.
Their Honours then went on to consider the relevant authorities governing the defence of fair comment and then considered the question whether the defence must meet the imputation pleaded. Their Honours held at [31] – [37] as follows:-
Must the defence meet the imputation pleaded?
[31] As earlier observed, counsel for Channel Seven submitted that it was not necessary for his client to attribute a meaning to the impugned words. Rather, it was submitted, the words should be taken to mean what they say.
[32] In Lloyd v David Syme & Co Ltd, the Privy Council, on appeal from the New South Wales Court of Appeal, Lord Keith of Kinkell observed:[5]
[5]    Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 735.
There is no such thing as comment in the air. Comment must have a meaning.
[33] Recently, the New South Wales Court of Appeal, in Nationwide News Pty Ltd v Sleeman,[6] referred to Lloyd v David Syme & Co Ltd in support of the proposition that where a defendant raises a defence of comment, that defence must go to the defamatory imputation found to have been conveyed and not to the published matter conveying the imputation. It is to be borne in mind that this decision was made in the context of particular legislation. If this reasoning applies to the present case, Channel Seven must meet the cause of action in question and not just the background to the cause of action or some cause of action not sued upon.[7]
[6]    Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349.
[7]    Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349 at [30].
[34] In so deciding, the Court of Appeal also applied the observations of Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Limited,[8] where their Honours expressly rejected the notion that a defendant to a claim in defamation could plead a meaning attributed to the impugned words different from that contended for by a plaintiff and then seek to justify that different meaning. Their Honours referred to observations of Lord O’Connor in Polly Peck v Telford,[9] where his Lordship said that such a practice was permissible. Brennan CJ and McHugh J then went on to observe:[10]
[8]    Chakravati v Advertiser Newspapers Ltd (1998) 193 CLR 519.
[9]    Polly Peck (Holdings) plc v Telford [1986] QB 1000.
[10] Chakravati v Advertiser Newspapers Ltd (1998) 193 CLR 519 at [8].
With great respect to his Lordship, such an approach is contrary to the basic rules of common law pleadings and in many contexts will raise issues which can only embarrass the fair trial of the action. Leaving aside technical pleas such as pleas in abatement, defences are either by way of denial or confession and avoidance. A defence which alleges a meaning different from that of the plaintiff is in the old pleading terminology an argumentative plea of not guilty. Under the principles of pleading at common law, it could tender no issue and would be struck out as embarrassing. Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant’s plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise. A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication. [emphasis added]
Later their Honours added:[11]
[11] Chakravati v Advertiser Newspapers Ltd (1998) 193 CLR 519 at [13].
No injustice is done by holding a defendant to the fundamental principles of pleading by requiring a defence to respond to the statement of claim. The Rules of the Supreme Court of South Australia require that a defence “specifically admit or deny every allegation of fact (including particulars) in the pleading to which the defence … relates, and allegations which are not specifically denied shall be deemed to be admitted”. The rules thus confirm the common law principle that the defence must plead to the allegations in the statement of claim.
[35] In David Syme & Co Ltd v Hore-Lacy,[12] Ormiston J considered at length the High Court’s decision in Chakravati and then concluded:[13]
[12] David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667.
[13] David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at [21]-[22].
It would therefore seem desirable, if it was not already required by authority, both that defendants should plead the meanings by way of false innuendo or imputation which they place upon the publication relied upon and that they should plead justification in terms which makes clear the version or versions of meaning of the publication to which that justification is directed. Whatever criticisms the minority levelled at the practice, it seems fortunately restricted to defamation actions and Chakravarti would at least restrict the extent to which imputations and false innuendoes which depart from those pleaded may be relied upon at trial. It would seem, moreover, that even the majority would permit a very limited departure from the case pleaded by the plaintiff; in other words, the jury will have to be told that they cannot find for the plaintiff unless they agree with the meaning or one of the meanings put forward on behalf of the plaintiff, or unless the meaning they would give the publication was only a nuance or variant, not substantially different or more serious from that proposed by the plaintiff.
If that be correct, then a defendant should not need to, nor be permitted to, plead or rely on a meaning other than one which is not more serious and otherwise is not substantially different. [emphasis original]
[36] Ormiston J indicated that he agreed in substance with the views of Charles J, who identified a limited exception to the principle established in Chakravati. Charles J observed:[14]
[14] David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at [53]-[54].
The principal criticism of the practice sanctioned in Polly Peck, of permitting a defendant to plead and justify a meaning different from that contended for by the plaintiff are that such an approach allows the defendant to raise false issues which can only embarrass the fair trial of the action and will on occasions unfairly prevent a plaintiff from pursuing a claim in defamation, in the manner explained by Brennan CJ and McHugh J in Chakravarti [at [8]-[12]]. The setting up of false issues by the defendant in this way may well make admissible a substantial body of evidence that would otherwise be irrelevant and thus greatly lengthen proceedings. But it seems to me that the same criticisms would not hold good if the defendant were limited to justifying a meaning which was one upon which the plaintiff might himself obtain a verdict on the pleadings as they stand.
Nor should a defendant be unfairly prejudiced if the defendant were limited to pleading a meaning which was sufficiently close (in the manner already suggested) to the plaintiff's meanings, so that the plaintiff himself could succeed upon that meaning on the pleadings as they stand. If the defendant is limited to pleading a meaning on which the plaintiff would be permitted to go to the jury, a false issue is not thereby raised. The issues are instead identified and confined, to the benefit of the court and the parties. Of course, if the plaintiff cannot make good a meaning amongst those identified, his action must fail, and the defendant has no need to plead any other meaning.
Then later:[15]
[15] David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at [58]-[59].
…it seems to me that if the defendant by its pleading indicates an intention to justify a meaning different from those relied on by the plaintiff, the defendant should be required to state what that meaning is, with the necessary particulars of the facts on which the justification is based.
The plaintiff, faced with such a pleading, is, I think, entitled to know clearly what the defendants are intending to justify, and the failure to provide such particulars might well cause the plaintiff serious disadvantage at the trial, with the potential for the trial to be disrupted and the proceedings lengthened or delayed. I agree with Ormiston JA therefore, for the reasons he gives, that a defendant which pleads that it proposes to justify meanings by way of false innuendo other than those alleged by the plaintiff, should plead those meanings and that it should plead justification in terms which make clear the version of meaning of the publication to which that justification is directed.
Whilst these remarks were directed at the defence of justification, they are equally applicable in the context of the defence of fair comment as indicated by Brennan CJ and McHugh J in Chakravati.
[37] The same approach was adopted in Anderson v Nation Wide News Pty Ltd,[16] by Ashley J who considered the legal principles with respect to a Polly Peck defence as they applied in Victoria. His Honour observed:[17]
It is true that, in Victoria, regardless of how many meanings are conveyed by a particular piece of matter, only one cause of action arises from it. But I do not consider that it follows from that circumstance that there is congruency if a defence of fair comment addresses a severable defamatory meaning of the publication which is not relied upon by the plaintiff. So to conclude would be to ignore the fact that nowadays a plaintiff is in general bound by the meanings which he attributes to a publication. It would be to ignore the fact that where several distinct defamatory allegations having no common sting are made in a publication the plaintiff can sue upon one only, and the defendant cannot justify by pleading the truth of another. It would be to ignore the developments concerning the Polly Peck defence which have taken place in Australia in recent years.
…
All in all, the position concerning fair comment set out in Polly Peck, as understood in Lloyd, appears to be consistent with the way in which the common law concerning defamation has developed in this country.
In Chakravati v Advertiser Newspapers Ltd Brennan CJ and McHugh J agreed in the result but differed in their reasoning from the other members of the court. In particular they regarded the pleading practice established by Polly Peck as being contrary to the basic rules of common law pleadings. But for present purposes, and bearing in mind the fact that in South Australia, where Chakravati originated, the plaintiff sues on the publication, their Honours significantly said this:
A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication.
Allowing for the fact that on the majority view – and see later Hore-Lacy – a defendant may plead a Polly Peck defence in pretty limited circumstances, what their Honours said in the context of a suit brought in an essentially common law jurisdiction seems to offer support for my conclusion.
[16] Anderson v Nation Wide News Pty Ltd (2001) 3 VR 619.
[17] Anderson v Nation Wide News Pty Ltd (2001) 3 VR 619 at [76]-[83] (footnotes omitted).
At [38], the court referred to the decision in The Advertiser News Weekend Publishing Co Ltd v Manock[18] where an earlier Full Court of the Supreme Court of South Australia had concluded that a defendant may only plead and seek to justify such alternative meanings as they may be relied upon by the plaintiff to obtain a judgment even though the plaintiff had not pleaded them. Then at [39] – [43], their Honours held as follows:-
[18] (2005) 91 SASR 206.
[39] Doyle CJ, with whom Vanstone and White JJ agreed, discussed the apparent tension between the approach of Brennan CJ and McHugh J in Chakravati and that of Ormiston and Charles JJA in Hore-Lacy. His Honour ultimately concluded that the approaches were not inconsistent. The Chief Justice respectfully agreed in principle with the views expressed by Brennan CJ and McHugh J as to the pleading of a Polly Peck defence, subject to the limited exception recognised by Charles JA.[19] Doyle CJ observed:[20]
In my respectful opinion the observations of Brennan CJ and McHugh J are supported by practical considerations. The approach that they take is conducive to the fair conduct of a trial. I agree with them that under the law as stated in Polly Peck it appears open to a defendant to plead and justify meanings that differ from the meaning on which the plaintiff relies, resulting in the introduction of evidence that will increase the length of the trial, may tend to cloud the issues, and may work to the unfair prejudice of the plaintiff.
The latitude that the principle stated in Polly Peck allows will lead to defendants re-stating defamatory imputations at higher levels of generality, then seeking to justify the more general imputation by evidence that does not bear directly on the matter of which the plaintiff complains. On that point it is pertinent to recall the observation of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corp (1990) 21 NSWLR 135 at 137: "Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation."
For these reasons, as a matter of principle, as a matter of fairness and having regard to the public interest in the efficient conduct of a trial, the law as stated by O'Connor LJ in Polly Peck should not be applied in this State. A preferable approach is that adopted by Charles JA in Hore-Lacy (at [53] and [54]). For those reasons I agree with the judge that the pleading of an alternative meaning should be struck out. I would dismiss the appeal against this aspect of the judge's reasons.
[40] The analysis of these authorities allows the following conclusion – a plea of fair comment must address the imputation pleaded by the plaintiff. This however allows a defendant to address any substantially similar or lesser meaning on which a plaintiff may be permitted to rely at trial. To put the matter in the negative, the substance of the comment cannot have a substantially different or more serious meaning than the imputation alleged by the plaintiff.
[41] Returning to the submissions made by counsel for Channel Seven, the approach taken in these cases does not support the proposition that the pleaded imputation does not need to be addressed by the comment. Nor does it support the contention that there is a sufficient connection between the defence of fair comment and the imputation alleged by the plaintiff if both rely on the same words. The approach contended for by counsel was said to derive from observations made by Samuels JA in Petritsis v Helenic Herald Pty Ltd.[21] In that case, Samuels JA specifically directed his attention to the provisions of the Defamation Act 1974 (NSW), which in his view distinguished between imputations on the one hand and the publication of the matter on the other. Samuels JA concluded that the defence of fair comment must be directed not to the imputation specified in the statement of claim, but to parts of the matter that the defendant claimed to be the comment.[22] Some later decisions that have considered the defence of fair comment within the context of the New South Wales legislation suggest a different approach.[23]
[42] In order to make out a defence of fair comment, it is not sufficient to assert simply that the imputation alleged to be the defamation and the comment rely on the same words. Counsel for Channel Seven’s contention that a defence arises from a connection between the imputation alleged and the defence of fair comment, simply because the words which found the imputation and the comment are common words, should be rejected. Such an approach is contrary to the authorities discussed earlier.
[43] Channel Seven cannot seek to defend a matter by asserting a substantially different or more serious meaning than that relied on by Dr Manock. The defence of fair comment must address the imputation pleaded. If Channel Seven’s particularised plea does not address the pleaded imputation in the manner set out above, it should be characterised as an argumentative plea. Such a plea raises a false issue and would impede a fair trial. It follows therefore that the substratum of facts relied upon by Channel Seven to support the defence of fair comment must be capable of supporting the comment substantially in the sense pleaded by Dr Manock. If the pleaded substratum is incapable of doing so, the particulars should be struck out.[24]
[19] Advertiser-News Weekend Publishing Co Ltd v Manock (2000) 91 SASR 206 at [73], [75].
[20] Advertiser-News Weekend Publishing Co Ltd v Manock (2000) 91 SASR 206 at [80]-[82].
[21] Petritsis v Helenic Herald PtyLtd (1978) 2 NSWLR 174.
[22] Petritsis v Helenic Herald Pty Ltd (1978) 2 NSWLR 174 at 193 (Samuels JA).
[23] Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349 at [30]-[32].
[24] See Fogarty v Nationwide News Ltd and Anor [2005] WASC 2 at [57] where Le Miere J concluded similarly.

I refer in particular to the references made by their Honours to the decision of Brennan CJ and McHugh J in Chakravati v Advertiser Newspapers Ltd at [8] where their Honours said a plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. Similar observations were made by Gray and Layton JJ in Manock. In order to maintain a plea of justification, fair comment or qualified privilege in respect of an imputation pleaded by the plaintiff it is necessary that such a defence address the imputation pleaded. In the proposed pleading, the defendant has not done so.
I now turn from the general objections to the formal pleadings to more specific objections. I have earlier set out in this judgment the imputations which the plaintiff says arise from the relevant publication. The further pleadings do not address those imputations. The plaintiff also contends that when properly construed, each of the proposed further pleadings would require a very broad evidentiary enquiry. Taking proposed paragraph 14b. as an example, there is no particularity as to the posts and media statements said to have been issued by the plaintiff or how the publication by the defendant was in some way a retort to them. It would be first necessary to make a comparison between the challenged posts and media statements (as yet unspecified) made by the plaintiff. It would then be necessary to decide whether or not there is qualified privilege. On the basis of the proposed pleading, it is not possible to state with sufficient certainty what further factual and forensic enquiries would need to be made which may inform the evidentiary issues to be decided at the trial. There would also be a need for the further pleading by the plaintiff of more detailed reply. That would again expand the context and content of the necessary forensic enquiry before the court. The trial date would be prejudiced in those circumstances.
None of the pleadings proposed by the defendant purport to address the imputations that are said by the plaintiff to arise from the first and second post as pleaded in the statement of claim. Using again the example of proposed paragraph 14b it refers only to what was public and as a retort to posts and media statements by the applicant. It does not address pleaded imputations. Proposed paragraph 14f and 14g similarly do not address the pleaded imputations.
Staying for the moment with proposed paragraph 14b and what purports to be a pleading of qualified privilege there is no suggestion, expressly or impliedly that the posts and media statements of the plaintiff in any sense attack the position of the defendant personally. If that were the case, it would be necessary for the defendant to properly plead the factual circumstances surrounding the alleged attack and there is no pleading of that nature in the proposed subparagraph. It would then be necessary to properly plead the basis for what is alleged to be the occasion of qualified privilege and to comply with s 28 of the Defamation Act.
In order to plead that section, it would be necessary for the defendant to plead and to prove that the recipient of the publication of the defamatory matter has an interest or apparent interest in having the information, that the matter is published to that recipient in the course of giving to the recipient information on that subject and the conduct of the defendant in publishing that matter is reasonable in the circumstances. The test of whether the recipient has an apparent interest in having the information on some subject is satisfied only if at the time of the publication in question the defendant believes on reasonable grounds that the recipient has that interest.[25] Section 28(3) Defamation Act then requires the court to take into account 10 separate matters prescribed within s 28(3)(a) – (j) inclusive of the Defamation Act. Some of the relevant enquiries are:-
(a) The extent to which the matter published is of public interest; and
(b) The extent to which the matter published relates to the performance of the public functions or activities of the recipient person;
(c) …
(d) The extent to which the matter published distinguishes between suspicions, allegations and proven fact; and
(e) Whether it was in the public interest in the circumstances for the matter published to be published expeditiously;
(f) Whether the matter published contain the substance of the person’s side of the story and if not whether a reasonable attempt was made by the defendant to obtain and publish a response from the person.
[25] See s 28(1) and (2) Defamation Act 2005.
None of these matters are addressed in the pleading such that a court would not therefore be in a position to take into account the matters set out in s 28(3)(a) – (j) Defamation Act.
On the second Facebook wall post, the imputation pleaded is that the second post in its natural and ordinary meaning was meant and understood to mean that the plaintiff has made or encouraged or is likely to make or encourage threats to rape and kill. There is no connection between the pleading of that imputation and for example proposed pleading 14b, 14f and 14g. There is no pleading of any factual basis upon which it may be said that the defendant could reasonably make such a statement about the plaintiff or that the plaintiff is likely to make or encourage threats to rape and kill or that he has made threats to rape and kill. As a proposed pleading of qualified privilege, proposed paragraph 14b is inadequate.
Proposed paragraph 14f appears to be an attempt at a pleading of the defence of truth. It fails at the outset because it pleads that the posts were based on the truth to the best of the defendant’s knowledge of his version of events. A defence that a statement is true to the best of the knowledge of the person making the statement is not a defence of truth under the Defamation Act. The plaintiff suggested that this may be a foundation for a plea of reasonableness in support of a plea of qualified privilege. That matter is not being pursued by the defendant and requires no further consideration by me.
Another difficulty with the defence of truth is that it stands inconsistently with other assertions made by the defendant that he did not publish the offending material. This submission of course overlooks the fact that for the material to have been republished (as the defendant contends) it must at least initially have been published by him on his Facebook wall. But if it is to be said that the defendant did not publish the first post then it would follow logically that the first post could not be said to be based on the truth to the best of the defendant’s knowledge as his version of events because the defendant would seek to disclaim the content of the post. Therefore, if the proposed paragraph 14f was allowed to stand, it would immediately come into conflict with existing paragraph 14d and 14e. Those subparagraphs plead that the content of the first and second post were reasonable in the circumstances and were published subject to an implied freedom to discuss issues of a political relevance.
There is also no pleading of material facts to support the assertion that the posts were based on the truth to the best of the defendant’s knowledge. In order to give fair notice of the defence, it will always be necessary for the defendant to plead the factual material supporting the assertion of truth. Taking the second post again as an example, it would be necessary to plead factual material in support of the court finding that the plaintiff has made or encouraged or is likely to make or encourage threats to rape and kill. None is pleaded and the proposed subparagraph is defective.
Proposed paragraph 14g pleads that the first and second posts were fair and reasonable comments and honest opinions with no intended malice. Under s 29 Defamation Act, in order to make out a defence of honest opinion it is necessary for the defendant to prove that the matter was an expression of opinion of the defendant rather than the statement of fact, the opinion is related to a matter of public interest and the opinion is based upon proper material. In order to defeat such a defence, it is necessary for the plaintiff to prove that the opinion was not honestly held by the defendant at the time the defamatory matter was published. In order to be based upon proper material, it is necessary to prove that the material is substantially true or was published on an occasion of absolute or qualified privilege or was published on an occasion that attracted the protection of a defence under s 26 or s 27 Defamation Act.
Therefore, in order to make out the defence, the material published must be an expression of opinion of the defendant rather than a statement of fact, be related to a matter of public interest and be based upon proper material. The plaintiff contends and I accept that the imputation that the plaintiff has made or encouraged threats to rape and kill is incapable of amounting to a comment or an opinion and so is incapable of giving rise to such a defence. I have earlier set out [24] of the decision of the Full Court in Manock. It is impossible to see how the imputation allegedly arising from the second post could be a matter of comment. There are no pleadings of the fact upon which the comment is based in order to justify the opinion, which must be based upon some identifiable facts. It would then be for others to judge the correctness or otherwise of the opinions. The conduct of the defendant appears to have reversed this process. The defendant appears to have stated the opinion and then attempted to ascertain the facts necessary to justify the opinions.
The opinion must be one that a person could reasonably hold. The defendant has not pleaded any material facts to support the alleged opinions. I am satisfied that the pleading of proposed paragraph 14g cannot satisfy and does not satisfy the common law requirements of s 29 Defamation Act. They do not satisfy the common law requirements prescribed at [24] of Manock which are not materially different. I have also earlier indicated that there is an inconsistency between pleading a denial that a post was a publication of the defendant and then alleging that the post constituted a fair and reasonable comment or honest opinion. This form of pleading contravenes 6DCR 98(6) because it purports to plead inconsistent factual allegations. For those reasons and all of the above reasons I am satisfied that it is not appropriate to exercise my discretion to allow the proposed amendments to paragraph 14 of the pleadings as above discussed.
If I am wrong about that opinion, I would still refuse leave to amend under the principles governing applications to amend pleadings. Those principles are thoroughly set out in the decision of PPG Developments v Capitano.[26] From [30], Doyle J discussed the relevant High Court authorities and sets out excerpts from the relevant judgments of the Justices of the High Court. At [37] – [39], Doyle J summarised the modern approach to the court’s discretion to grant permission to amend as follows:-
[26] (2016) 126 SASR 307.
[37] This modern approach to the Court’s discretion to grant a party permission to amend has been applied in numerous subsequent authorities. Leading examples include the decisions of the Full Court of the Federal Court in Cement Australia Pty Ltd v Australian Competition and Consumer Commission[27] (in which an application for permission to amend brought during the course of a trial was granted), and Tamaya Resources Ltd v Deloitte Touche Tohmatsu[28] (in which an application for permission to amend brought ahead of trial was refused).
[27] Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261.
[28] Tamaya Resources Ltd v Deloitte Touche Tohmatsu (2016) 332 ALR 199.
[38] In this Court, the principles in Aon Risk Services were summarised and applied by the Full Court in Channel Seven Adelaide Pty Ltd v Manock[29] in refusing an application to amend, despite the absence of any impact upon any proposed trial date. However, the significance of the modern approach is often most acute in the context of amendment applications that are likely to result in the postponement or adjournment of a trial.
[29] Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59.
[39] By way of summary, the High Court decision in Aon Risk Services, and the authorities that have applied it, have now made it plain that in exercising its discretion upon any application to amend, the court must take into account a number of factors. The factors include:[30]
[30] This list is similar to the list compiled by Bleby J in Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59 at [46].
·   The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.
·   The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.
·   The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and in particular the trial).
·   The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.
·   Whether the party has had a sufficient opportunity to plead their case earlier.
·   The time, cost and inconvenience associated with any delay or disruption of the proceedings.
·   The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment.
·   The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.
·   The impact upon the public’s confidence in the just and efficient administration of justice.
The proposed amendments are important because they do purport to raise new issues of fact and law. It is not possible to predict with sufficient certainty how long it would take to both prepare for and to properly canvass in the court those new issues of fact. This application is brought some two weeks before trial. If it were allowed, it is predictable that the application would necessitate an adjournment of the trial. This offends against what is now commonly described as the AON principles. The proposed amendments in my view are not arguable or tenable in their current forms. They would need to be repleaded in an appropriate form. That appears to be beyond the defendant at this time.
It is two weeks before trial and as I have already said, any successful application for amendment would impact upon and disrupt the progress of the proceedings and the trial date. There has been no explanation about the fact and extent of any delay leading to this matter being raised two weeks before trial. The affidavit material obliquely suggests that from at least prior to December 2016 the defendant has been requesting his solicitors to amend the pleadings but those requests have not been carried into effect. Whether that is so is impossible to ascertain sufficiently for it to be taken into account in the exercise of my discretion. It follows that I am not able to make a final determination as to whether the defendant has had a sufficient opportunity to plead his case earlier except to say that he has known since prior to December 2016 that he wanted to plead his case differently but appears to have received legal advice to the contrary.
In my estimation, there would be a significant cost detriment and inconvenience suffered by the plaintiff associated with a delay and disruption of the proceedings. It is not clear to me whether the plaintiff is in a position to make recovery of those costs from the defendant.
I have seen sufficient of the historical material to know that there is a particular strain in this litigation arising from the factual background in which it sits. As a result there will be uncertainty and strain of the litigation on the parties and their witnesses by any disruption or delay likely to be occasioned by the amendment.
Because of the efficiencies of the court process, I do not think that any delay would be for a long period of time. Nor do I think that a delay by an amendment and an adjournment of the trial would adversely affect access of other litigants to the public resources of the court. I am unable to make any assessment of the impact upon the public’s confidence in the just and efficient of the administration of justice.
I am unable to make some of the assessments that I have described above and I will leave aside my view that there is no merit to the proposed amendment in its current form which I consider to be unarguable and untenable. I consider that the predominant considerations on this aspect of the matter are: the loss of the trial date because of the amendment; no proper basis has been made out on the facts sufficient to justify such an amendment; there is no explanation before me of the alleged basis for leave to amend; there is no explanation for the delay in applying for the amendments; the amendments raise new issues of fact and law; and the time, cost and inconvenience associated with the disruption to the proceedings. The application must be refused on this basis.
In the course of argument the defendant informed the court that he would not press his application for leave to file a counterclaim. That is the end of that issue however, if it were necessary for me to decide the matter, I would have decided the application adversely to the defendant. In my opinion, the form of what is currently described as a counterclaim does not comply with the rules of the court, is not properly pleaded and appears to be statute barred under s 37 Defamation Act. As the defendant has withdrawn his application to file the counterclaim it is not necessary that I consider that matter further.
The application is dismissed. At the time that I dismissed the application on 11 April 2017 I dealt with the issue of costs. I made an order for costs in the amount of $1,900 to be paid forthwith by the defendant. I made that assessment pursuant to the operation of 6DCR 263, 264 and 265.