Mann v Sharma (Ruling)
[2025] VCC 1170
•21 August 2025
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationDEFAMATION LIST Case No. CI-25-01075
PAVNEET SINGH MANN First Plaintiff and RAVINDER ARORA Second Plaintiff and 5AB HOMES PTY LTD
(ACN 607 478 231)Third Plaintiff v NISHCHAY SHARMA Defendant ---
JUDGE:
HER HONOUR JUDGE MYERS
WHERE HELD:
Melbourne
DATE OF HEARING:
21 July 2025
DATE OF RULING:
21 August 2025
CASE MAY BE CITED AS:
Mann & Ors v Sharma (Ruling)
MEDIUM NEUTRAL CITATION:
[2025] VCC 1170
RULING
---Subject:DEFAMATION
Catchwords: Defamation – injurious falsehood – application by defendant for serious harm element to be determined prior to trial – whether special circumstances justifying the postponement of the determination to trial – strike out application – application for further particulars
Legislation Cited: County Court Civil Procedure Rules2018 (Vic); Defamation Act2005; Civil Procedure Act2010 (Vic)
Cases Cited:Wilks v Qu (Ruling) [2022] VCC 620; GRC Project Pty Ltd trading as GRC Property Management v Lai [2023] NSWDC 63; Qu v Wilks [2023] VSCA 198; Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192; Mond v The Age Company Pty Limited [2025] FCA 442; High Quality Jewellers Pty Ltd v Ramaihi (Ruling) [2022] VCC 2240; Baker & Anor v Mutton [2014] VSCA 302; Harmonious Blend Building Corporation v Keene (No 2) [2015] VSC 276; James v Faddoul [2007] NSWSC 821
Ruling: Application for the question of serious harm to be determined prior to trial granted.
Application to strike out the Amended Statement of Claim, or parts thereof, dismissed.
The plaintiffs to provide further and better particulars of paragraphs 30, 34, and 34A of the Amended Statement of Claim.
---
APPEARANCES:
Counsel Solicitors For the Plaintiffs Mr A Anderson Melbourne Legal Group Pty Ltd For the Defendant Mr G Mukherji Singh Solicitors HER HONOUR:
Introduction
1Mr Pavneet Mann, the first plaintiff, Mr Ravinder Arora, the second plaintiff, and 5AB Homes Pty Ltd (“5AB”), the third plaintiff, bring these proceedings against Mr Nischay Sharma, the defendant.
2Mr Mann and Mr Arora are the founders, directors and principals of 5AB, a home building company.
3Mr Mann and Mr Arora allege they were defamed by five publications made by Mr Sharma. 5AB alleges injurious falsehood in respect of three of those publications.
4A Concerns Notice was served on 3 January 2025.
5The Writ and Statement of Claim were filed on 27 February 2025.
6The proceeding is to be heard by a judge and jury.
7On 28 April 2025, the Court made directions allowing for an Amended Statement of Claim, the filing of a Defence and provision for a Reply.
8On 22 May 2025, the timetable for filing and serving pleadings was revised, and the matter was listed for further directions on 21 July 2025.
9An Amended Statement of Claim, dated 2 June 2025, was filed on 3 June 2025.
10On 30 June 2025, Mr Sharma filed a Summons in which he applies for the serious harm element of the cause of action for defamation to be determined prior to trial. Mr Sharma also applies under rule 23.02 of the County Court Civil Procedure Rules 2018 (Vic) (“the Rules”) to strike out the Amended Statement of Claim; alternatively, strike out paragraphs 20, 21, 22, 23, 24, 25, 28, 30, 34 and/or 34A of the Amended Statement of Claim; alternatively, pursuant to rule 13.11 of the Rules, he seeks an order that further particulars be provided of those paragraphs of the Amended Statement of Claim.
11By order dated 22 May 2025, Mr Sharma was required to file and serve his defence by 30 June 2025. He has not done so. It was submitted on his behalf that if serious harm were to be determined as a preliminary issue, the filing of the defence should await the outcome of that hearing.
12Mr Sharma has indicated that he denies that the pleaded imputations arise, and as far as they do, will rely upon substantial truth, qualified privilege and/or contextual truth defences.
13Mr Sharma relied upon an affidavit affirmed by him on 23 June 2025 in support of his application that the serious harm element be determined prior to trial.
14Mr Mann, Mr Arora and 5AB relied upon two affidavits sworn by their solicitor, Abhitinder Randhawa, on 18 July 2025 and 20 July 2025, exhibiting various correspondence between the parties.
The matters complained of and the imputations
15The first matter complained of (“the first publication”) was a post to the WhatsApp group of the Singh Sabha Sports Club Inc (“SSSC”) on or about 20 January 2024. The publication was in a mixture of English and another language. It is alleged there were approximately fifty members of the SSSC WhatsApp group at the time. Mr Mann was the President of SSSC. Mr Arora was a member of SSSC.
16Mr Sharma deposed this post was deleted the same day.[1]
[1]Affidavit of Mr Sharma affirmed on 23 June 2025, paragraph 11a
17Mr Mann and Mr Arora allege that in its natural and ordinary meaning, the first publication meant, and was understood to mean, that Mr Mann and Mr Arora “are thieves, in that they stole certificates from … [Mr Sharma]”.[2]
[2]Amended Statement of Claim, paragraph 20
18The second matter complained of (“the second publication”) was a post to the SSSC WhatsApp group on or about 1 December 2024. Again, the publication was in a mixture of English and another language.
19Mr Sharma deposed this post was deleted the same day.[3]
[3]Affidavit of Mr Sharma affirmed on 23 June 2025, paragraph 11b
20Mr Mann and Mr Arora allege that in its natural and ordinary meaning, the second publication meant, and was understood to mean, that Mr Mann and Mr Arora “stole important documents from [Mr Sharma] and have refused to return them”.[4]
[4]Amended Statement of Claim, paragraph 21
21The third matter complained of (“the third publication”) was to Mr Sharma’s Facebook page on or about 2 December 2024. The publication was partly in English and partly in another language, and also included an audio clip of a Bollywood song. It is alleged Mr Sharma had more than 3,000 followers of his Facebook page.
22Mr Sharma deposed that this was published as a Facebook story which defaulted to not appear online 24 hours after posting.[5] Mr Sharma further deposed that only two of the seventeen people identified as having read the third publication were in his friends list on his Facebook page. He said the privacy settings on his Facebook account did not permit persons other than those on his friends list to read his posts.
[5]Affidavit of Mr Sharma affirmed on 23 June 2025, paragraph 11c
23Mr Mann and Mr Arora allege that in its natural and ordinary meaning, the third publication meant, and was understood to mean, that Mr Mann and Mr Arora “are thieves”.[6]
[6]Amended Statement of Claim, paragraph 22
24The fourth matter complained of (“the fourth publication”) was to the “Dodgy Builders/Trusted Tradies Melbourne” Facebook page on or about 1 December 2024. It was in English. It is alleged that there were more than 120,000 followers of the Facebook page.
25Mr Sharma deposed that this was deleted after seven days.[7] Mr Sharma further deposed that the six persons identified as having circulated the fourth publication (in particular (k) subjoined to paragraph 25 of the Amended Statement of Claim) are each directly related to Mr Mann, Mr Arora and 5AB, being the spouses of Mr Mann and Mr Arora, and employees of 5AB.[8]
[7]Affidavit of Mr Sharma affirmed on 23 June 2025, paragraph 11d
[8]Affidavit of Mr Sharma affirmed on 23 June 2025, paragraph 17
26Mr Mann and Mr Arora allege that in its natural and ordinary meaning, the fourth publication meant, and was understood to mean, that Mr Mann and Mr Arora “engaged in dishonest practices to rip off and disrespect the clients of 5AB”.[9]
[9]Amended Statement of Claim, paragraph 23
27The fifth matter complained of (“the fifth publication”) was to the Rockbank, Melton, Tarneit, Truganina, Wyndham Vale, Point Cook Indian Community Facebook page on or about 1 December 2024. It was in English. It is alleged that there were more than 50,000 followers of the Facebook page.
28Mr Sharma deposed that this post was deleted within seven days.[10]
[10]Affidavit of Mr Sharma affirmed on 23 June 2025, paragraph 11e
29Mr Mann and Mr Arora allege that in its natural and ordinary meaning, the first publication meant, and was understood to mean, that Mr Mann and Mr Arora “engaged in dishonest practices to rip off and disrespect the clients of 5AB”.[11]
[11]Amended Statement of Claim, paragraph 24
The allegations of serious harm
30Mr Mann and Mr Arora plead that by reason of each of the five publications, they have suffered, or are likely to suffer, serious harm to their reputations. Mr Mann and Mr Arora allege that serious harm is to be inferred from the following:[12]
[12]Amended Statement of Claim, paragraph 25
“a.The imputations conveyed by the Publications are highly defamatory allegations of criminal behaviour and dishonesty and have an inherent tendency to seriously injure … [Mr Mann] and … [Mr Arora’s] personal and business reputations.
b.The First and Second Publications were published to a group of approximately 50 influential members of SSSC. This is a select group in which … [Mr Mann] and … [Mr Arora’s] personal and business reputations are a matter of great importance to them.
c.… [Mr Mann] was President of the SSSC, and … [Mr Arora] was a prominent and active member of SSSC at the time the First and Second Publications were published.
d.The First and Second Publications were shared by recipients with other members of the SSSC and republished on other social media resulting in the grapevine affect. … [Mr Mann] and … [Mr Arora] are aware that the First Publication and the Second Publication were shared by WhatsApp or other social media channels to other recipients by Tirath Singh, Navjot Singh, Manpreet Singh, Paramveer Singh and Harpal Bajwa. The grapevine effect can also be inferred from the manner in which such publications are readily shared via WhatsApp, and from the number of recipients.
e.… [Mr Mann and Mr Arora] refer to and rely on the particulars to paragraph 12 concerning the extent of publication of the Third Publication. [Those particulars identify seventeen persons who downloaded and read the Third Publication. It is further alleged that it can be inferred that the Third Publication was published to substantially more people as there were more than 3,000 followers of Mr Sharma’s Facebook page at the time, it was published in a sensationalist manner, and was short and direct and readily viewed in a matter of seconds].
f.The Third Publication was shared on … [Mr Sharma’s] Facebook page which has more than 3000 followers, many of whom move in similar business and personal circles to … [Mr Mann] and … [Mr Arora].
g.The Third Publication is also subject to the grapevine effect. … the Third Publication was shared beyond the followers of … [Mr Sharma’s] Facebook page by Satnam Singh and Tirath Singh. The grapevine effect can also be inferred from the manner in which content such as the Third Publication is readily shared via Facebook, and from the number of recipients.
h.The damage caused by the Third Publication is exacerbated by the sensationalist and humiliating posting of the allegations with a clip of a Bollywood song ‘This Thief is Making Noise’ together with an image of a man in sunglasses with two scantily clad women holding his hands.
i.… [Mr Mann and Mr Arora] refer to and rely on the particulars to paragraph 14 concerning the extent of publication of the Fourth Publication. [Those particulars identify ten persons who downloaded and read the Fourth Publication. It is further alleged that it can be inferred that the Fourth Publication was published to substantially more people as the Facebook page had more than 120,000 followers, it was also open to the public, it was published in a position on the page designed to be read by readers of that Facebook page, and it had 11 likes and 10 comments within two hours of being uploaded].
j.The Fourth Publication was shared on the ‘Dodgy Builders/ Trusted Tradies Melbourne’ public Facebook page which has more than 122,000 members predominantly concerned or involved in the building industry in Melbourne. This is the industry in which …[Mr Mann] and … [Mr Arora] have built their business and professional reputations.
k.The Fourth Publication is also subject to the grapevine effect. … the Fourth Publication was circulated via Facebook or WhatsApp or other social media by Navdeep Kaur, Ekta Arora, Shruti Karkra, Jitesh Grover, Mandeep Singh and Dalvir Singh. The grapevine effect can also be inferred from the manner in which content such as the Fourth Publication is readily shared via Facebook, and from the number of recipients.
l.… [Mr Mann and Mr Arora] refer to and rely on the particulars to paragraph 17 concerning the extent of publication of the Fifth Publication. [Those particulars identify ten persons who downloaded and read the Fifth Publication. It is further alleged that it can be inferred that the Fifth Publication was published to substantially more people as there were more than 50,000 followers of the Facebook page, it was published in a position on the Facebook page designed to be read by viewers of the Facebook page, and the publication contained a warning to viewers and grave allegations about the conduct of a well-known business [5AB] operating in that community].
m.The Fifth Publication was targeted at recipients in the Rockbank, Melton, Tarneit, Truganina, Wyndham Vale, Point Cook, Indian communities where … [Mr Mann] and … [Mr Arora] conduct much of their work and social activities.
n.The Fifth Publication is also subject to the grapevine effect. … the Fifth publication was circulated via Facebook or WhatsApp or other social media by Navdeep Kaur, Ekta Arora, Shruti Karkra, Jitesh Grover, Mandeep Singh and Dalvir Singh. The grapevine effect can also be inferred from the manner in which content such as the Fifth Publication is readily shared via Facebook, and from the number of recipients.
o.… [Mr Mann] and … [Mr Arora] have received phone calls from members of the Indian community inquiring (sic) about each of the Publications and seeking clarification. Several of their friends and associates have told them that people in the Indian community in Australia have been talking about … [Mr Sharma’s] Publications.
p.Further particulars of serious harm will be provided in due course.”
Serious harm
31Section 10A of the Defamation Act 2005 (“the Act”) relevantly provides:
“10A Serious harm element of cause of action for defamation
(1) it is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.
…
(3) the judicial officer (and not the jury) in a defamation proceeding is to determine whether the serious harm element is established.
(4) Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer’s own motion)—
(a) determine whether the serious harm element is established at any time before the trial for the proceeding commences or during the trial; and
(b) make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceeding if satisfied the element is not established).
(5) If a party applies for the serious harm element to be determined before the trial for the proceeding commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceeding (including during the trial).
(6) The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following—
(a) the cost implications for the parties;
(b) the resources available to the court at the time;
(c) the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceeding.
(7) Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element.
… .”
32I respectfully adopt the observations of Her Honour Judge Clayton in Wilks v Qu (Ruling):[13]
“… Whilst the serious harm element of the tort is not to be determined in this application, it nevertheless requires at least some consideration. It is likely to be linked, to some extent, to the matters that might constitute special circumstances.
For example in a claim where serious harm is highly likely to be established, the costs involved in having a preliminary hearing might constitute special circumstances, even if the costs themselves are not excessive. Similarly, using Court resources to determine an element separately that would simply add to the Court’s burden and have no potential to reduce the issues in dispute, or the time taken at trial, could constitute special circumstances.
… I do consider the parties’ arguments that touch on the prospect of serious harm being established, because it factors into the analysis I am required to undertake. ‘Special circumstances’ must be based on ‘the facts at hand’ and those facts must be unusual, uncommon or out of the ordinary. This is not a case in which it is so obvious that serious harm will be established that having a separate hearing will be a waste of time, costs and Court resources. Nor is it so obvious that serious harm will not be established so as to enable a determination of the element on the pleadings.
The words ‘frivolous’ or ‘trivial’ are not included in the legislation, as one might expect if the serious harm element was only to be determined prior to trial in such cases. A lack of triviality or frivolity is insufficient to qualify for ‘special circumstances’.”
[13][2022] VCC 620 at paragraphs [43]-[46] (footnotes omitted)
33In GRC Project Pty Ltd trading as GRC Property Management v Lai,[14] Gibson DCJ noted:
“… there will be many defamation trials which proceed without orders being made for a serious harm trial beforehand, generally where serious harm cannot be severed from the issues of the trial, or because the imputations are self-evidently such that serious harm is obvious … For this reason, as is noted in Alexander-Theodot[o]u v Kounis, orders for separate early hearings of serious harm are ‘rather less common’ (per Warby J at [35]) than would otherwise be expected to be the case.”
[14][2023] NSWDC 63 at paragraph [11]
34On the application of a party, the Court must determine the serious harm element as soon as practicable prior to trial unless there are “special circumstances”. The parties agreed that Mr Mann and Mr Arora bore the onus of establishing that there are such special circumstances.
35In Qu v Wilks,[15] the Court of Appeal said as follows:
“Having reviewed the authorities, we favour the approach of the Full Federal Court in Beadle that the phrase ‘special circumstances’ does not require any judicial gloss. That said, we think the phrase, as used in s 10A(5) of the Act, encompasses circumstances which are not routine or run-of-the-mill. Additionally, we would endorse what Spiegelman CJ said in Simpson that there will be circumstances which, either alone or in combination with other factors, justify a conclusion that ‘special circumstances’ are made out on the facts of a particular case; and it will be ‘comparatively rare for an issue to arise in terms of a proposition that a particular circumstance is incapable, as a matter of law, of ever constituting a ‘special circumstance’.”
[15][2023] VSCA 198 at paragraph [44]
36In Peros v Nationwide News Pty Ltd & Ors (No 3),[16] Applegarth J considered the circumstances that may be relevant to the serious harm element:
(a) The gravity of the defamation;
(b) The extent of publication;
(c) By whom the matter was published;
(d) The identity of the recipients; and
(e) The state of the claimant’s reputation prior to the publication.
[16][2024] QSC 192 at paragraphs [58]-[72]
37In Mond v The Age Company Pty Limited,[17] Wheelahan J said as follows regarding the element of serious harm:
[17][2025] FCA 442 at paragraphs [368]-[370]
“… the serious harm element is not concerned with the inherent tendency of the words to cause serious harm to the reputation of an applicant, but with actual harm …
The key requirement of s 10A is that an applicant must prove that the publication of the defamatory matter caused, or is likely to cause, serious harm to reputation. The reference to ‘defamatory matter’ in s 10A suggests that the causal relationship is with the publication of the matter in a defamatory sense …
Serious harm to reputation, or likely serious harm to reputation, are facts that must be proved by evidence. The evidence may include direct evidence, but depending on the circumstances of the particular case, a claim of serious harm need not be supported by direct evidence. That is because like any fact in issue serious harm to reputation may arise as an inference to be drawn from all the circumstances of the case … Those circumstances may include a combination of the following -
(a) the inherent tendency of the defamatory matter and its actual or probable impact on those to whom it was published, in other words, the gravity of the imputations;
(b) the extent of publication, any likely republication, and any likely ‘grapevine’ or ‘percolation’;
(c) whether there was a prompt apology, and the breadth of the audience to which any apology was published;
(d) the reputation of the publisher - a defamatory publication by a generally reputable publisher that is represented as being reliable and the product of research might be more capable of causing serious harm than one by a publisher that is not so reputable;
(e) the medium of the publication - a transient publication might cause less harm to reputation than one in print or which is available for viewing online for an extended period or indefinitely;
(f) the situation of the applicant, including the applicant’s existing reputation in the relevant sector;
(g) the identity of the persons to whom the defamatory matter was published; and
(h) the inherent probabilities generally.”
38Wheelahan J further noted:[18]
“In light of the object in s 3(c) of the Defamation Act to provide effective and fair remedies for persons whose reputations are harmed, s 10A(5) suggests that the serious harm element may be capable of ready determination prior to trial, thereby indicating that ‘serious harm to reputation’ is harm that is at least not trivial or minor in nature, as the second reading speeches to the Victorian and New South Wales Bills would indicate, rather than establishing an especially high threshold requiring extensive evidence to be led by an applicant. …
…
As I have identified, the context of s 10A, understood in its broadest sense, indicates that the high-level object of the provision is to preclude claims that are frivolous or trivial. Of course, insisting on proof of ‘serious harm’ does more than simply require proof that the harm to reputation caused by a publication is more than frivolous or trivial. Nevertheless, the object of the provision informs the proper construction that should be given to the statutory concept of ‘serious harm’.”
[18]Ibid at paragraphs [377] and [407]
The submissions of Mr Mann and Mr Arora
39Counsel for Mr Mann and Mr Arora submitted there were five factors which individually or collectively amounted to special circumstances justifying postponement of the determination of serious harm to trial.
40Counsel submitted that this case was not the type of “backyard” or trivial case to which the serious harm threshold hearings were directed. Mr Mann and Mr Arora are leaders and prominent businesspeople in the Sikh community in Melbourne. The publications accuse them of criminal wrongdoing, going to the very heart of their reputations. Those matters point to the strength of the claim on the issue of serious harm.
41First, this proceeding is to be heard by a civil jury. Thus, the imputations which arise from the publications are to be determined by the jury. Mr Sharma disputes the alleged imputations. It is necessary to determine the imputations as part of the assessment of serious harm. The imputations cannot be determined by the Court at a serious harm hearing.
42If serious harm were determined before the trial on the assumed basis that the imputations as pleaded were carried, and if serious harm were established:
(a) the jury might make a different determination of the imputations at trial; and
(b) serious harm would then be at large.
43In the event serious harm was found, there would have been no costs saved by the determination, and further costs would be expended.
44Second, given that the first, second and third publications were made on Mr Sharma’s “own devices”, he is in a position via discovery and interrogatories to provide information about the extent of publication. It was submitted that as a member of the SSSC, he knows who the other members are. Through discovery and interrogatories, Mr Sharma will be able to identify the recipients of the publications and the responses received.
45Third, there is a very substantial injurious falsehood claim by 5AB founded on the third, fourth and fifth publications. The issues which arise in the defamation claim with respect to those publications overlap significantly with the injurious falsehood claim. The common issues include whether the alleged meanings arise, and the truth or falsity of the imputations. 5AB is operated by Mr Mann and Mr Arora. These common issues are the most time-consuming issues and will have to be determined in any event on the injurious falsehood claim.
46Malice is an element of the tort of injurious falsehood. Mr Sharma has indicated an intention to rely on a defence of qualified privilege, and malice will be pleaded by way of reply. This issue will have to be determined in any event as part of the trial of the injurious falsehood claim.
47Fourth, there is overlap between the loss claimed in the injurious falsehood case, the lost contracts and loss of business. That loss is also relevant to the assessment of serious harm.
48The third publication is substantially the same as the first and second publication The fourth and fifth publication are in almost identical terms, published on the same or consecutive days.
49Finally, the serious harm hearing would likely take two to three days and require evidence. The witnesses in the serious harm hearing would likely have to give evidence at trial as well. There are strong prospects of Mr Mann and Mr Arora establishing serious harm. There would be no potential saving on costs, and indeed if serious harm were established, there would have been significant additional expenditure on costs.
Submissions of Mr Sharma
50Counsel for Mr Sharma submitted this proceeding is a standard defamation claim in respect of five publications said to have occurred on social media.
51The intention of the legislation is to determine serious harm as early as possible.
52The first and second publications were to a WhatsApp group with limited publication, and the third, fourth and fifth publications were to Facebook groups.
53Counsel submitted that there was nothing amounting to special circumstances justifying delay in determination of the serious harm element.
54It is not the correct approach to await discovery and interrogatories to establish further details of serious harm. Mr Mann and Mr Arora must have had a proper basis to bring the proceeding, including being able to establish serious harm.
55The submissions made regarding the strength of the case on serious harm could only be relevant to the issue of serious harm being determined prior to trial if they disclose that it is clear that serious harm will be established. This application is made because this is not such a case.
56Given that the proceeding is to be determined by a jury, Counsel accepted that the Court could not make findings as to the imputations conveyed by the publications at a serious harm hearing. The issue would be determined on the imputations as pleaded. That is, on an assumed basis.
57A special circumstance could exist where there was a risk of an element being determined separately that would simply add to the Court’s burden, and have no potential to reduce the issues in dispute or the time taken at trial. If serious harm is determined not to exist in this case, there would be two publications that the Court would not need to deal with in the trial. The defences available in the defamation proceeding would not be the same as those relevant to the injurious falsehood claim. If serious harm were not found, there would be a costs benefit of determining the serious harm element prior to trial.
58Counsel submitted the serious harm hearing would take one to two days at most.
Consideration
59At the conclusion of the parties’ submissions, I indicated it was my preliminary view that it was appropriate that there be a preliminary hearing on the issue of serious harm. Having carefully reviewed the authorities and further considered the submissions of the parties, I remain of that view.
60This is not a case in which it is obvious that serious harm will be established. Nor is it so obvious that serious harm will not be established such that the issue could be determined on the pleadings.
61A preliminary hearing would involve costs in terms of preparation, and likely a two, or perhaps three-day hearing.
62As the proceeding is to be heard by a jury, the meaning of the publications is a matter for the jury. Mr Sharma acknowledges a serious harm hearing in this case would proceed on the assumed basis of the pleaded imputations. As was observed by Judge Clayton in High Quality Jewellers Pty Ltd & Ors v Ramaihi (Ruling):[19]
“… The current practice in Australia seems to be that, for the purposes of a serious harm hearing, the imputations are accepted as pleaded by the plaintiff, unless an application has also been made for a determination on meaning.
This raises the theoretical, though perhaps unlikely, prospect that serious harm could be found where imputations are not conveyed, or where imputations are overturned on appeal. … .”
[19][2022] VCC 2240 at paragraphs [11]-[12]
63If serious harm were not established, that would finally determine Mr Mann and Mr Arora’s defamation proceedings. There would be a saving of costs and Court time. Notwithstanding that there is an overlap between the defamation and injurious falsehood proceedings, the trial of 5AB’s injurious falsehood claim on the third, fourth and fifth publications would be shorter than a trial of both the defamation and injurious falsehood claims.
64If Mr Mann and Mr Arora established serious harm, there would be no saving of time at trial. There is therefore a risk that determining the serious harm element prior to trial could result in additional cost to the parties and additional use of Court resources.
65In performing the balancing exercise, and assessing whether the costs could amount to a special circumstance, I am not persuaded that the likely costs involved in a preliminary hearing would amount to a special circumstance justifying postponement of the issue of serious harm.
66This application has been made at an early stage, prior to the close of pleadings. The proceedings are not well progressed or close to trial. The application of judicial resources to the determination of this issue is appropriate. I am not persuaded that the use of the resources of the Court would amount to a special circumstance justifying postponement of the issue of serious harm.
67Section 10A(6)(c) of the Act requires a consideration of the extent to which establishing the serious harm element is linked to other issues for determination during the trial.
68The test for serious harm is concerned with damage to reputation. There will be contested issues about the extent of publication and the impact of the grapevine effect.
69I am not persuaded that the extent to which the serious harm element is linked to other issues in this case is any greater than in any other defamation case.
70I have also considered whether any of the above matters in combination would amount to special circumstances, but I am not persuaded they do. In my view, this is an appropriate case for determination of the serious injury element as a preliminary matter.
71I will now turn to the pleadings issues.
Strike out application/application for further particulars
72Rule 23.02 of the Rules provides:
“23.02 Strike out pleading
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.”
73Rule 13.11 of the Rules provides:
“13.11 Order for particulars
(1) The Court may order a party to serve on any other party particulars or further and better particulars of any fact or matter stated in the party’s pleading or in an affidavit filed on that party’s behalf ordered to stand as a pleading.
(2) The Court shall not make an order under paragraph (1) before service of the defence unless the order is necessary or desirable—
(a) to enable the defendant to plead; or
(b) for some other special reason.
(3) The Court may refuse to make an order under paragraph (1) if the party applying for the order did not first apply by letter for the particulars the party requires.”
74The power to strike out a pleading is discretionary, and as a rule, is to be exercised only where some substantial objection or real embarrassment is shown.
75The Court must also have regard to the relevant provisions of the Civil Procedure Act 2010 (Vic) when considering case management issues.
76Notwithstanding that Mr Sharma applied in his Summons to strike out the entire Amended Statement of Claim, that application was not pursued. Mr Sharma’s strike out application was confined to paragraphs 20, 21, 22, 23, 24, 25, 28, 30, 34 and 34A.
77Despite making an alternate claim by his Summons for further and better particulars, no request was made by letter following the service of the Amended Statement of Claim, and prior to issuing the Summons.
78For convenience I will deal with the parties’ respective submissions for each part of the pleading.
Paragraphs 20, 21, 22, 23 and 24
Submissions of the Defendant
79In respect of paragraphs 20-24, Counsel for Mr Sharma submitted that where the publication is in another language, natural and ordinary meaning cannot arise. The other knowledge or attributes held by the reader, such as the language skill, must be particularised. If some special knowledge or information is brought by the reader to derive the imputation, then it is to be pleaded as an innuendo.
Submissions of the Plaintiffs
80Counsel submitted that the first, second and third publications are appended to the Amended Statement of Claim, and the translations of them are pleaded at paragraphs 5, 9 and 11 respectively. It is permissible to plead the ordinary and natural meaning once the publication is set out and the English meaning is identified.
81Paragraphs 23 and 24 relate to the fourth and fifth publications, which are in English.
Consideration
82The first, second and third publications are a mixture of English and another language. The translation relied upon is pleaded.
83Counsel for Mr Sharma was unable to identify any authority which provided support for the proposition that the pleading in its current form was inadequate or embarrassing.
84In my view, the pleading of the ordinary and natural meaning of the translation is sufficient.
85The fourth and fifth publications are in English, and the submission made regarding innuendo and foreign language does not apply.
Paragraph 25
Submissions of the Defendant
86In respect of paragraph 25, it was submitted that the pleading improperly aggregated the harm alleged to have been caused by the five publications.
Submissions of the Plaintiffs
87First, paragraph 25 does not aggregate the serious harm, but alleges each of the publications caused, or were likely to cause, serious harm.
88Second, particular (a) subjoined to paragraph 25 identifies that each of the publications was highly defamatory, alleging criminal behaviour and dishonesty. Particular (o) relates to each of the publications. Particulars (b), (c) and (d) particularise the serious harm caused by the first and second publications. Particulars (e), (f), (g) and (h) particularise the serious harm caused by the third publication. Particulars (i), (j) and (k) particularise the serious harm caused by the fourth publication. Particulars (l), (m) and (n) particularise the serious harm caused by the fifth publication.
89Third, it is permissible to aggregate serious harm in respect of similar or substantially the same type of publications. In Mond v The Age Company Pty Limited,[20] Wheelahan J observed:
“… Section 10A(1) makes it ‘an element … of a cause of action’ in relation to the publication of defamatory matter that the matter caused serious harm to reputation. The word ‘publication’ in s 10A(1) must be taken to refer to the publication of the defamatory matter by a respondent, such that the subsection is concerned with the collective effect of the publication by a respondent of the same defamatory matter in respect of which a cause of action is otherwise established. The collective effect may result from the publication by a respondent of the same or substantially the same matter on multiple occasions where each actionable publication gives rise to a separate cause of action. Therefore, harm to reputation caused by separate publications of the same or substantially the same matter, as with a mass media publication, may be aggregated … However, the serious harm element must be established for each particular defamatory matter on which the applicant sues and otherwise establishes liability, and not by reference to the accumulated consequences of various publications of different matters, some of which I have held not to be defamatory in the way claimed by the applicant. … .”
[emphasis added.]
[20]Supra at paragraph [381]
Consideration
90It is not necessary to determine the extent to which it may be permissible for Mr Mann and Mr Arora to aggregate serious harm arising from the separate publications as the pleaded allegations of serious harm are not relevantly aggregated in paragraph 25.
Paragraph 28
Submissions of the Defendant
91Paragraph 28 was submitted to be an improper pleading, as it was not clear what part of the meaning of “people should beware of thieves Ravinder Arora and Pavneet Mann at 5AB Homes” in paragraph 27 was said to be false.
Submissions of the Plaintiffs
92It was submitted the meaning was plain and obvious and did not require any further particulars or clarification.
Consideration
93In my view, the pleading at paragraphs 27 and 28 as to meaning and its alleged falsity is sufficiently clear.
Paragraph 34
Submissions of the Defendant
94Paragraph 34 alleges loss of business caused by the fourth publication. The loss is particularised to include the loss of eight specific home building contracts with a combined contract value of $3,792,991, with a loss of expected profit of $834,000 based on an expected profit of 22 per cent on each contract.
95Counsel submitted this did not meet the necessary criteria of pleading of the causal link.
96Counsel referred to Baker & Anor v Mutton.[21] This was an appeal from a ruling that the plaintiff be granted leave to file a further amended statement of claim, and whether there was a failure to properly plead elements of the cause of action of injurious falsehood. At paragraph 17, the Court of Appeal reproduced the proposed pleading of loss, and said:[22]
“The complaints here were numerous but in substance came down to the absence of any precisely determinable connexion between the alleged false statement, the circumstances in which it was made, the persons to whom it was made or who heard it made, their reaction to it and the alleged consequent loss and damage.
Counsel for the applicant submitted that it is impermissible or at least unacceptable to mix up a number of different allegations of loss and damage apparently relating to different statements or possibly to more than one statement and then allege a generalised conclusion that the statement or those statements somehow resulted in the respondent sustaining some form of loss or damage. In counsel’s submission, the respondent needs to plead a precise chain of connection between the alleged false statement and the loss and damage suffered.
In our view, those complaints are also well founded. What needs to be done in order to put the pleading into proper order is to allege in a precise, ordered and logical fashion, which statement is alleged to have been made, to whom it was made and how the making of it led to results which, it is said can be seen, were causative of loss and damage that the respondent is alleged to have suffered.”
[emphasis added.]
[21][2014] VSCA 302 (“Baker v Mutton”)
[22]Ibid at paragraphs [18]-[20]
97Counsel referred to the ruling of Dixon J in Harmonious Blend Building Corporation Pty Ltd v Keene & Anor (No 2).[23] The ruling concerned an application for leave to further amend the statement of claim in relation to loss caused by misleading or deceptive conduct in trade or commerce. The relevant conduct alleged was the publication of two critical reviews of the plaintiff on a product review website. The plaintiff alleged that reliance by potential customers on the publications caused it loss and damage, as potential customers did not enter building contracts with it or entered different and less valuable contracts.
[23][2015] VSC 276 (“Harmonious Blend”)
98Counsel highlighted the following:[24]
[24]Ibid at paragraphs [50], [51], [53] and [54]
“… [T]here are significant material facts that work against the plaintiff’s loss theory that have simply been ignored. These matters include that there were multiple publications of a similar nature online by others, apart from the second defendant. The complexity of building contracts as transactions is relevant to proper assumptions about what matters affect, or induce, a customer’s decision to enter into a building contract at a particular price. …
…
… Cases where the court has been required to do its best with a paucity of evidence provide no basis to contend for the sufficiency of poorly thought out particulars. In Goldsmith v Sandilands, Gleeson CJ remarked:
‘The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but ‘to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial’. The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive […].’
…
I add that in considering the objections to the pleading, the overarching purpose of the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The efficient conduct of the business of the court and dealing with this proceeding in a manner proportionate to the complexity or importance of the issues in dispute and the amount in dispute are not objects that are advanced by these particulars. The particulars of loss that remain, although they confine the loss alleged to be caused, do not fill in the picture of that loss as it will be presented at trial. The risk that the issues in this proceeding will become unmanageable at trial and that costs may be disproportionate are unacceptable on the pleading as presently advanced. …
… [T]hese particulars are likely to prejudice, embarrass or delay a fair trial of this proceeding. … .”
99Counsel for Mr Sharma submitted that if the claim for loss of the eight contracts was to be maintained, proper particulars were required as to how the fourth publication led to results which were causative of the loss and damage alleged.
Submissions of the Plaintiffs
100Counsel submitted that paragraph 34 provides exactly the sort of particulars that are required at an adequate level of specificity.
Consideration
1015AB alleges that the fourth publication caused it to lose eight substantial contracts.
102In my view, the current pleading at paragraph 34 is likely to prejudice, embarrass or delay a fair trial of the proceeding; however, I do not consider it appropriate to strike out the paragraph with leave to re-plead. To facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute, in my view, the appropriate approach is to require further particulars.
103Applying the principles in Baker v Mutton[25] and Harmonious Blend,[26] it is necessary for 5AB to plead in a precise, ordered and logical fashion, how the fourth publication led to the results which, it is said, were causative of the loss and damage that 5AB alleges it suffered. The current particulars do not fill in the picture of the cause of action with information sufficiently detailed to put the defendant on notice as to the case he must meet and to enable him to prepare for trial.
[25]Supra
[26]Supra
1045AB is to provide further and better particulars of paragraph 34 of the Amended Statement of Claim.
Paragraphs 30 and 34A
Submissions of the Defendant
105Paragraphs 30 and 34A, which allege 5AB’s loss of business as a result of the third and fifth publications respectively, with further particulars to be provided prior to trial, were submitted to be woefully inadequate.
Submissions of the Plaintiffs
106It was submitted that 5AB pleads loss of business because of the third publication in paragraph 30, and because of the fifth publication in paragraph 34A. Loss of business is a classic type of loss that may be claimed in an injurious falsehood proceeding. General loss of business can be relied upon to satisfy the fourth element of the cause of action. There is no basis to seek to strike out the paragraphs. Whether further particulars ought to be required at this stage is a separate question.
107Further, it was submitted that Harmonious Blend was a case concerning an action for misleading or deceptive conduct. Causation is different in an action for injurious falsehood in which the defendant is liable for the loss intended because of that falsehood. In James v Faddoul,[27] a pleading in similar terms was held to be sufficient.
[27][2007] NSWSC 821
Consideration
108In my view, paragraphs 30 and 34A require particulars of the alleged loss of business.
Conclusion
109For the above reasons, I am not persuaded that there are special circumstances that justify delaying determination of the serious harm element.
110Mr Sharma’s application to strike out paragraphs 20, 21, 22, 23, 24, 25, 28, 30, 34 and 34A of the Amended Statement of Claim is dismissed.
111Further particulars are to be provided of paragraphs 30, 34 and 34A of the Amended Statement of Claim.
112The parties are invited to submit a draft minute of order consistent with this ruling by 4.00pm on Thursday, 28 August 2025.
113I will reserve the question of costs of the Summons.
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