Kapandritis v Nationwide News Pty Ltd (No 2)

[2020] NSWDC 784

District Court

New South Wales

Medium Neutral Citation:

Kapandritis v Nationwide News Pty Ltd (No 2) [2020] NSWDC 784

Hearing dates:

30 July and 3 December 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) Paragraph 2(a) of the Amended Reply filed on 21 August 2020 is struck out and leave to plead the additional particular 2(a)(iii) (set out in the submissions dated 14 October 2020) is refused.

(2) Costs reserved.

(3) The parties to have liberty to provide Short Minutes of Order for any further timetable to my associate in chambers.

Catchwords:

TORT – defamation – defences under ss 28 and 29 of the Defamation Act 2005 (NSW) – challenges to particulars of the Reply

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Defamation Act 2005 (NSW) ss 28, 29

Uniform Civil Procedure Rules (NSW) 2005 rr 15.1, 15.4 and 15.31

Cases Cited:

Alsaifi v Trinity Mirror plc & Anor [2017] EWHC 1444 (QB)

Barrow v Herald & Weekly Times Pty Ltd [2015] VSC 263

Brett May v TCN Channel Nine Pty Ltd & Ors [2007] NSWSC 760

Chel v Fairfax Media Publications Pty Ltd (No 4) [2017] NSWSC 107

Cummings v Fairfax Digital Australia and New Zealand Pty Ltd [2018] NSWCA 325

Feldman v Nationwide News Pty Ltd [2020] NSWCA 260

Feldman v Nationwide News Pty Ltd [2020] NSWCA 260

Green v Schneller [2000] NSWSC 548

Gross v Weston [2007] NSWCA 1

Harrigan v Jones [2000] NSWSC 814

Kapandritis v Nationwide News Pty Ltd [2019] NSWDC 684

Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526

Qadir v ANL [2012] EWHL 2606

Qadir v ANL [2020] EWHC 2606 (QB)

Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58

Category:

Procedural and other rulings

Parties:

Plaintiff: Spiro Kapandritis
Defendant: Nationwide News Pty Ltd

Representation:

Counsel:
Plaintiff: Mr R Rasmussen
Defendant: Ms M Cowden

Solicitors:
Plaintiff: Nicopoulos Sabbagh Lawyers
Defendant: Nationwide News Pty Ltd

File Number(s):

2019/244603

Publication restriction:

None

Judgment

The application before the court

1. The plaintiff, by statement of claim filed on 6 August 2019, brings proceedings for defamation for publication of an article on the defendant’s news site. I have previously made rulings in relation to the capacity of the imputations: Kapandritis v Nationwide News Pty Ltd [2019] NSWDC 684.

2. The application before the court is the defendant’s two challenges to the particulars of the Reply, which are as follows:

1. The first challenge was to the Reply filed on 20 May 2020; this judgment sets out my reasons for striking out those particulars on 30 July 2020 but granting leave to replead.

2. The second challenge, heard on 3 December 2020, seeks orders striking out paragraph 2(a) of the Amended Reply filed on 21 August 2020, as further amended by an additional paragraph (iii) provided in written submissions provided by Mr Rasmussen on 14 October 2020; this judgment sets out my reasons for striking out those particulars without further leave to replead.

3. Consideration of these submissions requires analysis of the matter complained of, including its text and layout, which is as follows:

Matter Complained of in Kapandritis v Nationwide News Pty Ltd_ (327110, pdf)

4. The defendant has pleaded defences pursuant to ss 28 and 29 in the following terms:

“10 …

(b)    Public Document – section 28 of the Defamation Act 2005(NSW)

The matter complained of, or that part of it found to have carried the imputations set out in paragraph 4 of the Amended” Statement of Claim, was, or was contained in , a public document or a fair copy of a public document, and accordingly the defendant has a complete defence in respect of the publication of the matter complained of.

(c)   Fair Report – section 29 of the Defamation Act 2005(NSW) and the common law

The matter complained of, or that part of it found to have carried the imputations set out in paragraph 4 of the Amended” Statement of Claim, was, or was contained in , a fair report of proceedings of public concern, and accordingly the defendant has a complete defence in respect of the publication of the matter complained of.”

The 30 July 2020 application to strike out the particulars

5. The plaintiff’s particulars for the defences of publication of public documents and fair report were both originally pleaded as follows:

“(a) The defendant, by its servants or agents, did not publish the matter about the plaintiff honestly for the information of the public, or the advancement of education, because those servants or agents knew when they had completed reading the documents referred to in paragraph 25 of the particulars of the Public Document Defence that those documents did not impute, allege, say, infer or document [the imputations pleaded in the amended statement of claim].

(b) Whereas the matter as published by the defendant did impute, allege, say infer or document [the imputations pleaded in the amended statement of claim].

(c) The defendant wrote an article that used words that were intended to embarrass the plaintiff in that they [sic] accused him of having a history of crimes that he had not committed because the defendant believed that the plaintiff had not been sufficiently punished by the magistrate.

(d) By reason of the matters set out in (a) to (c) above the defendant bore the plaintiff ill will and desired to injure him by the publication of the matter complained of.”

6. The purpose of a Reply, in defamation proceedings, is to set out the facts, matters and circumstances which the plaintiff proposes, by evidence at the trial, to prove: Gross v Weston [2007] NSWCA 1 at [32] – [33]. These particulars cannot merely assert various states of mind on the part of a defendant as conclusions; they must identify the factual basis relied upon to establish that state of mind, as only in that way will the defendant know the case which has to be met at the hearing.

The relevant statutory provisions

7. The nature of the defences under ss 28 and 29 of the Defamation Act 2005 (NSW) is helpfully summarised by Macaulay J in Barrow v Herald & Weekly Times Pty Ltd [2015] VSC 263 at [30]:

A report is fair and accurate for the purposes of the s 29 defence where it is a substantially accurate summary of what took place in proceedings, even if it reports only part of the proceedings, is brief or is selective. Omissions or inaccuracies in a report that do not result in the impression or effect of the actual proceedings being substantially misrepresented, in a manner that defames the plaintiff, do not render a report unfair or inaccurate. There must be a substantial misrepresentation of the material fact prejudicial to a plaintiff’s reputation before the defence will be lost. [Citations omitted]

8. The defences to which the Reply is pleaded, ss 28 and 29 of the Defamation Act 2005 (NSW) (“the Act” or “the uniform legislation”), require the plaintiff to prove that the defamatory matter was “not published honestly for the information of the public or the advancement of education”.

9. The context for this requirement is as set out in s 28, which provides:

“28 Defence for publication of public documents

(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in—

(a) a public document or a fair copy of a public document, or

(b) a fair summary of, or a fair extract from, a public document.

(2) For the purposes of subsection (1), if a report or other document under the law of a country would be a public document except for non-compliance with a provision of that law about—

(a) the formal requirements for the content or layout of the report or document, or

(b) the time within which the report or document is prepared, or presented, submitted, tabled or laid to or before a person or body,

the report or document is a public document despite that non-compliance.

(3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

(4) In this section, public document means—

(a) any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law, or

(b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including—

(i) any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction, and

(ii) any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination, or

(c) any report or other document that under the law of any country—

(i) is authorised to be published, or

(ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body, or

(d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public, or

(e) any record or other document open to inspection by the public that is kept—

(i) by an Australian jurisdiction, or

(ii) by a statutory authority of an Australian jurisdiction, or

(iii) by an Australian court, or

(iv) under legislation of an Australian jurisdiction, or

(f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section, or

(g) any document of a kind specified in Schedule 2.”

[Emphasis added]

10. The relevant provisions for the purposes of this argument are ss 28(3) (highlighted above) and 29(3); the defeasance provisions in s 29(3) are materially identical to s 28(3).

11. The relevant provisions for providing particulars of the Reply are Uniform Civil Procedure Rules (NSW) 2005 (“UCPR”) r 15.1, 15.4 and 15.31.

Reasons for the ruling of 30 July 2020

12. The relevant principles have long been considered as settled law, not only since the enactment of the uniform legislation and of the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules (“UCPR”), but also under the repealed legislation: see Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58 (“Waterhouse”) and Harrigan v Jones [2000] NSWSC 814. The question for determination in this application, according to Mr Rasmussen, is whether the use of the phrase “honestly for the information of the public or the advancement of education” in sub-section 3 permits a wider range of particularisation than that which would have been permitted under the repealed legislation, where the reference was to “good faith”.

13. Mr Rasmussen’s submissions on the first application (which he repeated on the second application) may be summarised as follows. Absence of “good faith: speaks to the motive for the actual publication itself, but there is a fundamental difference between the cases preceding and following the uniform legislation, as the phrase “good faith” was replaced in the uniform legislation by the concept of “honestly” of publishing (see McColl JA’s observation of this distinction in Cummings v Fairfax Digital Australia and New Zealand Pty Ltd [2018] NSWCA 325 (“Cummings”) at [240]). Mr Rasmussen argues that, the Court of Appeal in Cummings having made this distinction the (even though the Court did not consider that distinction further), there is a difference in the test. Whereas all that need be relied upon in defeasance under the old legislation was the inaccuracy of the article and the defendant's knowledge of that inaccuracy or falsity, that is no longer the case. Mr Rasmussen acknowledged that this is a novel argument.

14. I start by noting that, under the repealed legislation, there is a difference between “good faith” and malice, as the following passage from Waterhouse explains (p 63-64):

“The purpose of the publisher must be, according to s 26, to publish the report for public information or for the advancement of education. Such a purpose usually appears from the terms of the matter complained of and from the nature of the vehicle in which it is published: Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 331. Where the matter complained of purports to be a court report and it appears in a newspaper for general sale in the community, the required purpose is established. Similarly, if it purports to be a report and appears in a legal textbook; whilst the publication in those circumstances may not be for the information of the public, it would be for the advancement of education. Each such purpose looks not to the result which the defendant seeks to achieve by his publication so much as the effect which the defendant intended his publication to have upon the minds of its recipients. A plaintiff may be able to demonstrate that the defendant's purpose was otherwise in such circumstances, but it is difficult to imagine how he would go about discharging his onus to do so in those particular circumstances. The 1974 Act does, however (as did the common law and the earlier statutes), require the defendant to effect that purpose in good faith. This is where questions may arise as to the result which the defendant sought to achieve by his publication. A proprietor of a newspaper may publish a report of court proceedings in order to inform the public of what happened in those proceedings, but he does so because he bears ill-will towards the plaintiff and wishes to injure him by that publication. If the plaintiff can establish that motive, he would have discharged his onus of showing that the publication was not in good faith notwithstanding that its purpose was to inform the public. The distinction between purpose and motive is one already accepted in this field (for example: Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) (NSW) 17 at 22; Bridges v Australian Consolidated Press Ltd (1967) 70 SR (NSW) 52 at 61, 66-67; 86 WN (Pt 2) 392 at 398, 404); as it is in other fields such as taxation (for example: XCO Pty Ltd v Federal Commissioner of Taxation (1971) 124 CLR 343 at 350-351; Loxton v Federal Commissioner of Taxation (1973) 47 ALJR 95 at 98; 73 ATC 4001 at 4006).

The absence of good faith which the plaintiff must establish in order to defeat the defence of fair protected report is not the same as express malice, the term of art which is used to describe what a plaintiff must establish in order to defeat the defence of qualified privilege. I recently examined that concept of express malice in some detail in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50-54. I pointed out that if the plaintiff shows either that the defendant has used the occasion to publish the matter complained of for a purpose other than that for which the privilege is given (which is usually described as an indirect or an improper or a foreign motive) or that the defendant did not have an honest belief in the truth of what he published, the defence of qualified privilege is defeated. It is important to emphasize that this is not what the plaintiff must (or may) prove in order to demonstrate that the defendant published a fair protected report with an absence of good faith.

In particular, it is not evidence of the absence of good faith which defeats the defence of fair protected report if it be shown that the defendant knew that statements made in the course of the proceedings and included in the report were false. There is no requirement that the defendant have an honest belief in the truth of what is reported. No doubt he should have an honest belief in the substantial accuracy of the report, but if the report turns out to be substantially inaccurate then no question of good faith or of the defendant's state of mind arises. There is no absence of good faith if the defendant knows that what is reported is in fact untrue. Principle demands that that be so. I have been unable to find any express authority or dictum exactly to the point but, as James LJ, once said, the clearer a proposition is, the more difficult it is to find an authority for it: Panama and South Pacific Telegraph Co v India Rubber, Gutta Percha, and Telegraph Works Co (1875) LR 10 Ch App 515 at 526.”

15. The particulars of the Reply in Waterhouse which Hunt J rejected were: (pp 66-7)

“(a) The imputations were false to the knowledge of the defendant.

(b) The matter complained of was false to the knowledge of the defendant.

(c) The defendant published the matter complained of with reckless indifference to its truth and accuracy.”

16. Hunt J struck these out (at 67C – G) for three reasons, which I summarise below, noting any potential relevance to particulars of “good faith”, malice and “honestly” publishing:

1. Instead of setting out the facts and matters relied upon, these particulars “merely assert the ultimate facts”, to use his Honour’s description. In other words, there is an ipse dixit assertion of a fact, such as knowledge of falsity, without identifying the underlying material. This has nothing to do with the difference between “good faith” and malice; it is a pleading defect for both. Ms Cowden submits that the same defect occurs in these particulars.

2. These particulars misconceived the nature of the defence – if the report was unfair to the knowledge of the defendant, the tribunal of fact would reject the defence and never get to the issue of defeasance. The particulars of defeasance must be approached on the basis that the report is fair. Once again, this was a pleading defect, and not a feature of the difference between “good faith” and malice.

3. Knowledge of falsity is irrelevant to the absence of good faith which defeats the defence. To give an example with some relevance to the present case, if the prosecutor stated from the bar table that the plaintiff had been convicted of domestic violence and the reporter knew that this was not in the police facts, his publication of what the prosecutor said would not be a basis for defeasance. Is that also the case for malice? It is generally accepted that knowledge of falsity may go to defeasance, and this is an area of difference.

17. I set out his Honour’s careful explanation of these points in relation to the repealed legislation:

“These particulars do not comply with the requirements of Pt 67, r 19(d), because, instead of identifying the facts and matters relied upon, they merely assert the ultimate facts to be inferred from unstated facts and matters: NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585 at 603; King v John Fairfax & Sons Ltd [1983] 1 NSWLR 31 at 32-33. The plaintiff submitted that to give more would be to disclose the evidence by which he intends to prove those allegations. That is not so. And, if it were so, it would not matter. There are various quite different ways in which these allegations might be proved by the plaintiff: one would be to establish that notice of the truth of the matter had been given to the defendant by an unimpeachable source; another would be by way of admission by the defendant; and a third would be by way of inference from other facts. There could also be other ways. The defendant has no idea at all what case it has to meet. In any event, the starting point in giving particulars is what is necessary to be disclosed in order to guard the defendant against surprise; the starting point is not what can be said without disclosing the evidence to be led: Sims v Wran (at 321-322).”

18. Both Harrigan v Jones and Waterhouse have been referred to with approval many times. Harrigan v Jones has more limited application (Brett May v TCN Channel Nine Pty Ltd & Ors [2007] NSWSC 760), but Waterhouse was strongly endorsed in Cummings at [239] – [240] by McColl JA, Beazley P and Simpson AJA concurring:

“[239] As Hunt J held in Waterhouse v Broadcasting Station 2GB Pty Ltd, when considering the defeasance provision in s 26 of the 1974 Act (where the publication complained of was not in good faith for public information or the advancement of education), the purpose of the publication “usually appears from the terms of the matter complained of and from the nature of the vehicle in which it is published.” Thus his Honour held, “[w]here the matter complained of purports to be a court report and it appears in a newspaper for general sale in the community, the required purpose is established.” I assume his Honour there meant the purpose of publication was for “the information of the public”.

[240] Section 26 of the 1974 Act did not have an honesty requirement, as does s 28(3). Neither party drew the court’s attention to any case in which the concept of honesty for the purpose of s 28(3) has been considered. In the context of the requirement of “good faith” for the purposes of s 26 of the 1974 Act, Hunt J held in Waterhouse that the court looks “to the result which the defendant sought to achieve by his publication”. Thus, while a “proprietor of a newspaper may publish a report of court proceedings in order to inform the public of what happened in those proceedings, [if] he does so because he bears ill-will towards the plaintiff and wishes to injure him by that publication” the s 26 defeasance was established. Thus, s 28(3) involves a subjective test.” [Footnotes omitted]

19. This endorsement from three experienced defamation judges should be the final word on the subject. While a difference in wording from “good faith” was noted by McColl JA, it was not suggested that anything flowed from it. (As to decisions postdating my ruling on 30 July 2020, see my observations below concerning Feldman v Nationwide News Pty Ltd [2020] NSWCA 260 at [117].)

20. Moreover, the Court referred with approval (at footnote 176 and in the summary of principles at [6]) to the decision of Siopsis J Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526 (“Nyoni”).

21. In Nyoni (at [238] – [242]), Siopsis J explained the interaction between the test in Waterhouse and its application to the language of the uniform legislation as follows:

“238 In the case of Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58 (Waterhouse), Hunt J considered a defence to defamation provided by s 24 of the Defamation Act 1974 (NSW) in respect of the publication of a fair protected report of proceedings including, in that case, court proceedings.

239 Section 26 of the Defamation Act (NSW) provided that the defence could be defeated only if the plaintiff established that the publication complained of was not in good faith for public information or the advancement of education.

240 The defendant had broadcast a report of a court proceeding in which the defendant had reported statements regarding the possession of a firearm by the plaintiff. Hunt J considered whether the fair protected report defence had been defeated.

241 At 64, Hunt J observed:

“The 1974 Act does, however (as did the common law and the earlier statutes), require the defendant to effect that purpose in good faith. This is where questions may arise as to the result which the defendant sought to achieve by his publication. A proprietor of a newspaper may publish a report of court proceedings in order to inform the public of what happened in those proceedings, but he does so because he bears ill-will towards the plaintiff and wishes to injure him by that publication. If the plaintiff can establish that motive, he would have discharged his onus of showing that the publication was not in good faith notwithstanding that its purpose was to inform the public. The distinction between purpose and motive is one already accepted in this field… (Original emphasis.)”

242 In my view, the observations of Hunt J in Waterhouse apply also to the construction of the words “honestly for the information of the public” in s 28(3) of the Defamation Act.”

22. I regard these observations as not merely compelling but, in light of their acceptance in Cummings, conclusive. (I should note that this important decision is difficult to find as search engines tend to bring up the appeal decisions of White J dismissing the appeal after Mr Nyoni’s failure to comply with security for costs, which may explain why Mr Rasmussen did not come across it).

23. However, I should also take into account the manner in which Siopsis J determined this defence. First, his Honour held (at [234] – [235]) that the respondent had established a defence under s 28(1) of the Act. Next, he determined whether the defence had been defeated by ill-will or intent to injure on the part of servants or agents of the respondent:

“264 I find that Mr Spencer included the first condition as a recommended condition in the investigation report not because Mr Spencer had any ill-will towards Mr Nyoni or any motive to injure Mr Nyoni’s reputation. Rather, I find that the inclusion of that condition was founded upon Mr Spencer’s inadvertent use of an inappropriate precedent in choosing the conditions to recommend in respect of Mr Nyoni in his investigation report. This is because it is apparent that the conditions which Mr Spencer used as a precedent had been imposed on practitioners whom the Board believed had or may have abused prescription drugs. This is apparent from the documents which were belatedly discovered by the respondents (see exhibits 7 and 7A).

265 Further, Mr Spencer was appointed as an investigator under s 163 of the National Law and that appointment has an independent standing. Thus, in acting as an investigator and in preparing the investigation report Mr Spencer may well have not been acting in the capacity of an officer of AHPRA such that AHPRA would be responsible for the acts and omissions of Mr Spencer as an investigator.

266 However, that is not the end of the matter as concerns AHPRA in relation to the preparation of the investigation report. This is because, as I have found, Dr Gaby and Mr Anderson were acting as AHPRA officers in overseeing the preparation of the investigation report by Mr Spencer. In that capacity, Dr Gaby and Mr Anderson as AHPRA officers bear a responsibility for the contents of the investigation report.

267 However, for the following reasons, I find that Mr Nyoni has failed to prove that by their conduct in tacitly approving the contents of Mr Spencer’s investigation report which, of course, included the first condition, Dr Gaby and Mr Anderson acted with ill-will towards Mr Nyoni or with a motive of injuring Mr Nyoni’s reputation.

268 Mr Nyoni did not call any evidence from Mr Anderson.

269 Dr Gaby’s evidence was that she could not recall how much critical scrutiny she gave to the conditions proposed by Mr Spencer in his investigation report before attending the notifications committee meeting. Thus, insofar as the acts or omissions of Dr Gaby contributed to the recommendation to the Board that the first condition be imposed upon Mr Nyoni’s registration as a pharmacist, the most that can be said, on the evidence, is that circumstance arose by reason of the inadvertence of Dr Gaby; and not out of any ill-will by Dr Gaby towards Mr Nyoni or any motive on Dr Gaby’s part of injuring Mr Nyoni’s reputation.

270 Next, insofar as Mr Nyoni contended that in publishing the first condition on the AHPRA website on 16 December 2013, AHPRA did not publish that condition honestly for the information of the public, I find, for the following reasons, that Mr Nyoni has failed to prove that contention.

271 Mr Spencer’s evidence was that he was not involved in the process of entering the decisions of the Board on to the national register. Mr Spencer’s evidence was that it was the function of managers at AHPRA to give effect to decisions of the Board. Dr Gaby was not asked any questions as to her involvement, if any, in the process.

272 Mr Nyoni called no other evidence as to the circumstances in which AHPRA caused the decision of the Board of 26 November 2013 to be published on AHPRA’s website on 16 December 2013, or the motivation of any AHPRA officer or officers involved in the publication of the conditions on AHPRA’s website.

273 Accordingly, there is no evidence upon which Mr Nyoni can found his contention that the officer or officers of AHPRA responsible for publishing the first condition on AHPRA’s website, did so out of ill-will towards Mr Nyoni or in furtherance of a motivation to injure Mr Nyoni’s reputation.”

24. After findings about a further document, in similar terms, Siopsis J concluded:

“280 It is not possible to infer from the foregoing evidence and circumstances that in continuing to publish the first condition on its website after 22 August 2014, AHPRA did so out of ill-will to Mr Nyoni or to give effect to a motive to injure Mr Nyoni’s reputation.

281 Accordingly, I find that Mr Nyoni has failed to discharge the onus in s 28(3) of the Defamation Act of proving that the first condition was not published honestly for the information of the public by AHPRA.

282 The consequence is that AHPRA is entitled to rely on the public document defence.”

25. Siopsis J does not set out what the particulars pleaded were, but these appear to have been knowledge of the falsity, ill-will and intent to injure, of the kind that Hunt J struck out. However, the reasons for this consideration relate to the unusual factual circumstances before his Honour. The applicant and respondent had a long history of personal dealings over the circumstances in which the applicant became the subject of the reports the subject of the claim for defamation. The applicant called witnesses whose activities in this regard were asserted to be evidence of the ill-will and intent to injure and they were cross-examined about a series of activities, as the above extracts demonstrate.

26. The circumstances in Nyoni demonstrate that, in an appropriate case where there is this kind of ongoing personal dispute or evidence of some other kind of dominant improper motive, there may be particulars of the kind Mr Nyoni was able to provide. This is the point made in Qadir v ANL [2012] EWHL 2606 at [182], [191], [194] and [202] ff., concerning a claim of failure to act as a responsible journalist. The key problem in these proceedings is that, however the interpretation of the tests in the repealed and uniform legislation is approached, there must be proper particulars of the conduct in question, and not merely bald allegations of the kind set out in the particulars above.

The plaintiff seeks leave to replead

27. I indicated after hearing the application that I proposed to strike out the particulars, principally because I considered the decision in Cummings (and its reference to Nyoni) to be binding, and that I accepted the correct approach was that put forward by Ms Cowden in her written submissions. Mr Rasmussen asked for leave to replead and, since I was of the opinion that “the devil was in the detail”, I permitted this. I deferred providing a written judgment until the repleaded particulars were provided.

28. This was not the plaintiff’s first attempt at these particulars. The plaintiff’s initial particulars had been based on the assertion that there was such an egregious failure to report the facts that the inference could be and should be drawn that the documents were not published honestly for the information of the public or advancement of education but out of ill will and a desire to embarrass the plaintiff. This was abandoned because, as Beech-Jones J stated in Chel v Fairfax Media Publications Pty Ltd (No 4) [2017] NSWSC 107, even “egregious errors of reporting” (at [2]) are insufficient to amount to malice for the purpose of defeating the defence.

29. Notwithstanding these two earlier attempts, I acceded to Mr Rasmussen’s request for a further attempt to replead particulars. This is a complex area of the law and Mr Rasmussen’s criticism of the decisions in Cummings (for not having gone further) as well as the need to consider Siopsis J’s treatment of these issues in Nyoni, warranted further consideration.

30. The initial Reply had been filed on 20 May 2020. Following the hearing on 30 July 2020, an amended Reply was filed on 21 August 2020 and placed on JusticeLink on 26 August 2020. That contained the first two particulars dealing with the language. The third particular was added by Mr Rasmussen in his written submissions dated 14 October 2020, which also sought to draw the court’s attention to Qadir v ANL [2020] EWHC 2606 (QB) at [182] – [212]. A timetable for further submissions was then necessary and, when Ms Cowden’s submissions were not answered, the hearing date had to be vacated.

31. Due to this history, this application was not able to be heard until 3 December 2020. This delay meant that it was necessary for me to obtain the transcript of the 30 July 2020 hearing of the application.

32. The latest attempt, however, has essentially raised the same three difficulties as the previous ones, namely those listed by Hunt J in Waterhouse at 67.

The further application to amend the Reply

33. The plaintiff has now particularised the defeasance as follows:

“(a) The defendant, by its servants or agents, published the said matter complained of because the defendant’s servants and [sic] agents bore ill will toward the plaintiff and desired to injure him by the publication of the said matter complained of by reason of the following facts, matters and circumstances:

(i) the words and language used in the article for the purpose of embarrassing the plaintiff;

(ii) the words and language used in the article for the purpose of punishing the plaintiff because the defendant and its servants or [sic] agents believed that the plaintiff had received an insufficient punishment from the magistrate;

(iii) the defendant [sic] knew that the words used at [13] and [14] of the article (in which it published the extract from the Police Facts sheet) was misleading and unfair because there was not referred to in that Facts Sheet any reference [sic] to the plaintiff having a history of violence, threatening phone calls, domestic violence, malicious damage or extortion or that he had been subject to several apprehended violence orders in the past.”

34. Before going further, I first note two problems common to all three new particulars.

35. The first is the interchangeable use of “servant and agent”, “servant or agent” and “defendant”. Mr Rasmussen candidly acknowledges that he cannot identify that person or persons; he infers these particulars from the contents of the matter complained of. This means that particulars of ill-will and intent to injure of the kind permitted in Nyoni, based on prior dealings and the like (or of the kind identified in Qadir v ANL at [206] – [211]) are unavailable. It is also a serious difficulty in terms of particularising the relevant defeasance.

36. The second problem is that, on 20 October 2020, the NSW Court of Appeal handed down Feldman v Nationwide News Pty Ltd [2020] NSWCA 260, where the following statements were made:

“[116] Pursuant to s 29(3), the statutory defence may be defeated if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education: see, for example, Rush at [439].

[117] With respect to s 29(3) of the Act, the tone of voice used in a radio or television broadcast or the prominence given to a report can be factors relevant to whether the report was published honestly: Waterhouse at 69–71.”

37. There is no particularisation of unfair layout, prejudicial photographing or any similar conduct in these proceedings but, if there had been, I would have not only followed Waterhouse, but done so conformably with the Court of Appeal’s obligations as to the applicability of pre-uniform legislation decisions such as Waterhouse to the determination of such issues. To date, the Court of Appeal is treating the “good faith” and “honestly” provisions as a distinction without a difference.

The new particulars of the Reply

38. As Ms Cowden helpfully notes in her submissions, the newly pleaded particulars are effectively that the defendant:

1. Published the matter complained of to embarrass the plaintiff;

2. Believed the plaintiff’s sentence was insufficient;

3. Published the article to punish the plaintiff; and

4. Did so using (unspecified) words and language to embarrass and/or punish him. I should note, in this regard, that Ms Cowden points out that the language used in the publication which appears to be extreme (such as that in the heading and attributed to the plaintiff) is all language that was used in the proceedings.

39. The original pleading also included the principal assertion, namely that the defendant (or its servants or agents) thought that the plaintiff had not been sufficiently punished for his crimes, so the differences between these and the original particulars are not as significant as Mr Rasmussen asserts.

40. By way of general observation, aside from the obvious difficulty that there is no criticism in the article of the plaintiff’s sentencing, opinions as to the appropriateness of the sentence would not, without more, fall outside the role of the media in reporting such matters in terms of the ambit of the fair report defence.

41. As well as the absence of specific facts and matters, the particulars, past and present, conflate the elements in the defence. For the tribunal of fact even to get to s 29(3), the defences of fair report and/or publication of a public document under the Act must be taken to have passed the s 29(2) barrier and for the onus then to revert to the plaintiff. What the plaintiff must then establish is that, notwithstanding the fairness, the article was not published for the reasons identified in s 29(3), but for some other reason.

42. For example, in Green v Schneller [2000] NSWSC 548, Simpson J noted that a defence of fair report, if successful, would have failed because the defendant went beyond describing what happened in court to “further her cause” against the plaintiff (at [85]). Like Nyoni, Green v Schneller is a good example of the kind of personal animus generally necessary for a plea of defeasance to succeed, although almost invariably material of this sort means that the defence of fair report fails at the first hurdle.

Application of these principles to the particulars pleaded

43. I consider each of the particulars in turn.

Particulars 2(a)(i) and 3(a)(i)

44. These particulars merely assert, without explanation or particulars of the facts, matters and circumstances that the purpose of the unknown author(s) of the publication was to “embarrass” the plaintiff.

45. Mr Rasmussen’s submissions of 14 October 2020 list the language in question as being unspecified words in paragraphs 1 – 4, 9 and 13 – 14. What words is he referring to, and how do these words, individually and/or collectively, have a “purpose” to embarrass the plaintiff? If these are words that were used in court, how does repeating them in the article embarrass the plaintiff in circumstances capable of amounting to defeasance? Whatever the test, this is a fundamentally flawed particular, for these reasons.

46. The asserted purpose of embarrassing the plaintiff is a mere ipse dixit. It could be said about any publication (for example, the newspaper reports in the Feldman proceedings referred to above) that its purpose was to embarrass and, without particularisation, the defendant would be unable to meet it.

47. Ms Cowden also objects to the addition of particulars of the paragraphs not contained in the Reply. If these particulars had been of assistance, I would have permitted the filing of a further amended Reply, but they add nothing of substance.

48. Particulars 2(a)(i) and 3(a)(i) will be struck out.

Particulars 2(a)(ii) and 3(a)(ii)

49. Once again, these are conclusory assertions without any factual basis.

50. In addition, the matter complained of does not refer to, or convey, any suggestion that the sentence imposed is inadequate. It sets out in detail how the defendant’s conduct in throwing a can and speaking to the victim in the manner described was viewed by the sentencing magistrate in objective terms.

51. Apparently to meet this criticism, the plaintiff’s submissions of 14 October 2020, in addition to this particular, assert that the unknown servant or agent of the defendant would have known of the maximum penalty and believed that the sentence was inadequate because of the differential between the maximum and the sentence imposed by the magistrate. I assume that this is an attempt at the “responsible journalist” argument in Qadir v ANL.

49. However, any responsible journalist would have some understanding, however slight, of the role of the maximum sentence in sentencing, and would not make the assumptions attributed to him/her by Mr Rasmussen.

50. As Ms Cowden points out at paragraphs 17 – 23 of her helpful written submissions, these particulars fail all the pleading rules discussed above, in addition to failing to identify the servant or agent involved.

51. Particulars 2(a)(ii) and 3(a)(ii) should accordingly be struck out.

Particulars 2(a)(iii) and 3(a)(iii)

55. These particulars assert that the words in paragraphs 13 and 14 are misleading and unfair because the defendant knew that the offences set out were not in the Police Facts sheet.

56. I agree with Ms Cowden’s analysis of the defects as set out in paragraph 27 of her submissions.

57. As to Mr Rasmussen’s advocacy of the reasoning in Qadir v ANL in relation to this particular, I repeat that the element of defeasance in Australia is not “malice” but “not published honestly for the information of the public or the advancement of education”. Nor is “good faith” under the repealed legislation the same as “malice”, for the reasons explained by Hunt J in Waterhouse at 64D – G.

58. I also note that, even if malice were applicable, conduct of the kind described in Qadir v ANL at [205] – [212] would be necessary. The high degree of particularity for such a pleading was emphasized in Alsaifi v Trinity Mirror plc & Anor [2017] EWHC 1444 (QB) at [84]. If a plaintiff does intend to particularise dishonesty of the kind identified by Tugendhat J at [212], detailed particulars of the relevant facts must be provided. It is not enough to state that the offences listed in paragraphs 13 and 14 are not in the Police Facts, not least because paragraph 13 of the matter complained of states that “the court heard” about the history of violence, as opposed to the Police Facts which “said” and “stated” (paragraphs 6 and 9) certain matters which are quoted in inverted commas, followed by the statement that “police said” at paragraph 12. A picture is painted of both documents and submissions. The fact that material was not in the Police Facts, without more, is insufficient.

59. Even if the considerations of malice referred to in Qadir v ANL were imported into the test for ss 28(3) and 29(3), this particular, like the other two, fails to provide the detailed factual basis necessary to establish state of mind.

Conclusions concerning the application

60. The plaintiff has made a series of unsuccessful attempts to plead particulars in the Amended Reply as well as in subsequent submissions. All of these have failed. These have been made over a period of seven months. There have been two dates for argument, and the plaintiff has failed in every iteration of the pleading. There must come a time when no further leave will be granted.

61. By reason of the above, paragraph 2(a) of the Amended Reply filed on 21 August 2020 is struck out, without leave to replead. I have also noted in the orders set out below that leave to plead the additional particular 2(a)(iii) (set out in the submissions dated 14 October 2020) is refused.

Interrogatories and Costs

62. Given my rulings, it is not necessary to determine the issue of interrogatories relating to the proposed particulars

63. The parties agreed that costs are to be reserved

Orders

1. Paragraph 2(a) of the Amended Reply filed on 21 August 2020 is struck out and leave to plead the additional particular 2(a)(iii) (set out in the submissions dated 14 October 2020) is refused.

2. Costs reserved.

3. The parties to have liberty to provide Short Minutes of Order for any further timetable to my associate in chambers.

4. Matter stood over for directions to the Defamation List on 4 February 2021.

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Decision last updated: 21 January 2021