Palmer v Turnbull

Case [2018] QCA 112

SUPREME COURT OF QUEENSLAND

CITATION:

Palmer v Turnbull [2018] QCA 112

PARTIES:

CLIVE FREDERICK PALMER
(applicant)
v
MALCOLM TURNBULL
(respondent)

FILE NO/S:

Appeal No 7351 of 2017
SC No 1634 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Civil

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 5 June 2017 (Douglas J)

DELIVERED ON:

5 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2017

JUDGES:

Fraser and Gotterson JJA and Brown J

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed in part.

3.   Order 1 of the primary judge insofar as it strikes out paragraph 3 of the further amended statement of claim set aside.

4.   Otherwise, appeal dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the applicant sues the respondent for defamation in respect of the publication of words spoken at a press conference in China – where the applicant seeks leave to appeal against the strike out of paragraph 3 and paragraph 7(a) of the applicant’s further amended statement of claim – where the applicant ultimately sought to rely on the presumption that Chinese Law does not differ from local law – where the respondent contends that the applicant was obliged to plead the applicable Chinese law and as such failed to plead a material fact – whether the applicant was required to plead Chinese law – whether an imputation could not be distilled further or lacked precision

Uniform Civil Procedure Rules 1999 (Qld), r 444, r 445

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, cited
Dyno Wesfarmers Ltd v Knuckey & Ors; Dyno Wesfarmers Ltd v Dyer [2003] NSWCA 375, applied
Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273, considered
Interval Resort Networks (Australasia) Pty Ltd v Western Australian Newspapers Ltd [1999] WASC 2, considered
Puttick v Tenon Limited (2008) 238 CLR 265, [2008] HCA 54, distinguished
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10, applied

COUNSEL:

A M Nelson with P Mason for the applicant
R J Anderson QC, with P McCafferty, for the respondent

SOLICITORS:

Alexander Law for the applicant
Bennett & Philip for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Brown J and the orders proposed by her Honour.

  2. GOTTERSON JA:  I agree with the orders proposed by Brown J and with the reasons given by her Honour.

  3. BROWN J:  The applicant, Mr Palmer, sues the respondent, The Honourable Malcolm Turnbull, MP, Prime Minister of Australia, for defamation in respect of the publication of words, spoken to the attendees of a press conference held by the respondent in Beijing, China on 15 April 2016.  In his further amended statement of claim the applicant did not plead the applicable Chinese law or its content.  The respondent contends that the applicant is obliged to do so.  The applicant contends that he was not so…

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AGLC
Palmer v Turnbull [2018] QCA 112
Case
[2018] QCA 112
Decision Date

CaseChat Overview and Summary

Palmer v Turnbull involved a defamation claim brought by Palmer against Turnbull in relation to statements made at a press conference in China. The primary dispute centred on the appropriateness of the court striking out certain paragraphs of the statement of claim. The respondent sought to have specific paragraphs of Palmer’s further amended statement of claim struck out, arguing that Palmer had failed to plead the applicable Chinese law and that certain imputations were too vague. The central legal issue was whether Palmer was required to plead the applicable Chinese law and whether certain allegations lacked the necessary precision to support an imputation of fraud. The court had to determine whether the presumption that Chinese law does not differ from Australian law was sufficient or if a more explicit pleading of the applicable law was necessary. Additionally, the court needed to assess whether the imputations in the pleadings were sufficiently precise to avoid being struck out.

In addressing these issues, the court found that Palmer was required to plead the applicable Chinese law as a material fact, especially since the defamation allegedly occurred in China. The court held that since Palmer relied on the foreign law, it was necessary to allege and prove it. However, the court also found that the allegation lacked precision because it did not clearly specify what conduct led to the imputation of fraud. The court emphasised that Palmer needed to provide further words to clarify the conduct that gave rise to the imputation. Ultimately, the court granted leave to appeal and allowed the appeal in part, setting aside the order striking out paragraph 3 but dismissing the rest of the appeal. The court’s decision underscored the importance of pleading the applicable foreign law and ensuring that allegations are precise enough to avoid being struck out.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed in part.

3. Order 1 of the primary judge insofar as it strikes out paragraph 3 of the further amended statement of claim set aside.

4. Otherwise, appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent subsequently sought to strike out those paragraphs of the further amended statement of claim.Decision at first instance Following an application being made by the respondent to, inter alia, strike out paragraphs 3 and 7(a) of the further amended statement of claim, his Honour struck out paragraph 3 on the basis that:[1][1]Reasons at pp 2-3; AB 125 - 126.“In this matter, the defendant asks that paragraph 3 of the further amended statement of claim be struck out on the basis that it fails to comply with rule 149(1)(b) of the Uniform Civil Procedure Rules, in failing to plead a material fact on which the plaintiff relies, namely, a foreign law.The proceedings are defamation proceedings, where the alleged defamation is said to have occurred at a press conference given in Beijing in China, on or about 15 April 2016. The pleading in paragraph 3 asserts that material fact, but does not allege, in effect, what the legal regime was affecting the publication in China of the words complained of.The defendant’s point is that, at least since Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, the law is that the substantive law for the determination of rights and liabilities in respect of foreign torts is the law of the place of the wrong. As the headnote in that decision says, the double actionability rule had no application in Australia to international torts.On that basis, it is argued for the defendant that the pleading needs to recite, as a material fact, the law applicable to the publication of those words in China at the time…Mr Nelson’s [Counsel for the plaintiff] submission was that there was no obligation on his client to plead the foreign law, on the basis that there was no particular forensic advantage to be sought in it, and that the normal presumption that the law of the jurisdiction here would apply in the foreign forum was sufficient for his purposes.It does seem to me, however, that his client is relying on the foreign law as a material fact, disclosed as such in the correspondence, but also because it seems to me to be a material fact necessary to establish that the law of the place of the tort does provide a remedy in a case like this. See the last sentence of paragraph 71 in the Zhang decision:… namely that, “a party” who relies on a foreign lex loci delicti “must allege, and, if necessary, prove it”.In those circumstances, therefore, it seems to me that the application should be granted in respect of paragraph 3, with, of course, leave to replead.” In relation to paragraph 7(a) of the further amended statement of claim, his Honour rejected an argument that the pleaded words could not support an imputation that the applicant had acted fraudulently by taking money from Queensland Nickel. However, notwithstanding that, his Honour found that the allegation lacked precision, particularly because its internal definition of “fraudulently” by the use of the words “by taking money from Queensland Nickel” was so imprecise as to justify being struck out. His Honour considered that the imputation left the respondent in the position of asking what is the fraud and what exactly is required to be proved in order to establish that the imputation is true.[2] His Honour considered that it was incumbent on the applicant to plead further words that make it clear why the imputation does arise by, in effect, specifying the conduct said to arise from the publication which leads to the imputation that taking money from Queensland Nickel was fraudulent.[2]Reasons at p 4; AB 127.

Ratio Decidendi

Legal Principle Established

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