Metcash Trading Limited (ACN 000 031 569) v Bunn

[2007] FCA 2038

FEDERAL COURT OF AUSTRALIA

Metcash Trading Limited (ACN 000 031 569) v Bunn [2007] FCA 2038

METCASH TRADING LIMITED (ACN 000 031 569), IGA DISTRIBUTION PTY LTD (ACN 004 391 422) AND AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645) v PETER CHADLEY BUNN

SAD 29 OF 2006

LANDER J
17 DECEMBER 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 29 OF 2006

BETWEEN:

METCASH TRADING LIMITED (ACN 000 031 569)
First Applicant

IGA DISTRIBUTION PTY LTD (ACN 004 391 422)
Second Applicant

AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645)
Third Applicant

AND:

PETER CHADLEY BUNN
Respondent

JUDGE:	LANDER J
DATE OF ORDER:	17 DECEMBER 2007
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.Paragraph 46.1(d) of the respondent’s amended defence filed on 5 November 2007 be struck out.

2.The respondent pay the applicants’ costs of the applicants’ oral strike-out application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 29 OF 2006

BETWEEN:

METCASH TRADING LIMITED (ACN 000 031 569)
First Applicant

IGA DISTRIBUTION PTY LTD (ACN 004 391 422)
Second Applicant

AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645)
Third Applicant

AND:

PETER CHADLEY BUNN
Respondent

JUDGE:	LANDER J
DATE:	17 DECEMBER 2007
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application by the applicants to strike out three aspects of the respondent’s amended defence.  The applicants’ case against the respondent is partly in defamation.  The respondent has pleaded in his defence, defences of truth, fair comment and qualified privilege.  Mr Wells QC, who has led for the applicants, has sought to have all three pleas struck out.  He contended that the plea of truth cannot stand because the respondent has failed to particularise the facts upon which his defence is based in relation to each of the imputations pleaded against the respondent.  In my opinion, that contention is correct.  The pleas of truth are generally no more than a restatement of the applicants’ pleaded imputation together with a conclusion which is put forward to justify the plea of truth.  The pleas are inappropriate.

2. The plea of fair comment is bad for a number of reasons.  First, the plea does not recognise or state the comment which is said to be honest or fair.  Indeed, the plea of fair comment raises by way of comment, a comment not made in any of the imputations.  Secondly, the plea appears to assert that what are clearly matters of fact are comment.  Thirdly, the plea does not identify the facts upon which the comment is based. 

3. The plea of qualified privilege is likewise bad because it claims that all occasions of publication, of which there are very many in this case, were made on an occasion of qualified privilege.  It claims that the publication by the respondent of material on the World Wide Web was an occasion of qualified privilege “given the large number of creditors, suppliers, customers and shareholders of the applicants, and the respondents limited financial resources.”

4. The plea does not recognise that each publication was a separate occasion and the corresponding duties and interests of the respective publisher and reader have not been addressed.  In those circumstances, I think it appropriate, as Mr Wells QC has contended, that all of paragraph 46.1(d) be struck out. 

5. The respondent conceded that the pleas were defective and that he had taken advice from his pro bono advisers in relation to this application.  He indicated that he would wish to file a further amended defence raising the same defences with the proper particularity.  There are two ways that the matter may proceed.  I could at this stage give leave to the respondent to replead the defences of justification, fair comment and qualified privilege or I could simply wait upon any application being made to file a further amended defence.  It seems to me preferable in the circumstances of this case that the second course be adopted because of the serious deficiencies which are presently in the pleas.  The respondent indicated that he ought to be in a position to proffer a further amended defence by the end of January.  If that be the case, he is of course at liberty at that stage to make any application he would wish in relation to the filing of a further amended defence.

6. If he makes such an application and proffers such a document, he will need to show that the document complies with the Federal Court Rules 1979 (Cth) in relation to pleadings and in relation to particulars before the document will be allowed to be filed.  That seems to me to be the preferable course.  For those reasons, therefore, the order will be that

   
   
   

   paragraph 46.1(d) of the amended defence is struck out.  There will be an order that the respondent pay the applicants’ costs of the application.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:       18 December 2007

Counsel for the Applicants:	Mr J Wells QC
Solicitor for the Applicants:	Kelly & Co
Counsel for the Respondent:	Respondent appeared in person
Date of Hearing:	17 December 2007
Date of Judgment:	17 December 2007