Parke v Rubenstein (No 2)

Case [2021] FCA 107

FEDERAL COURT OF AUSTRALIA

Parke v Rubenstein (No 2) [2021] FCA 107

File number: SAD 12 of 2020
Judgment of: WHITE J
Date of judgment: 16 February 2021
Catchwords:

PRACTICE AND PROCEDURE – application to strike out defence of honest opinion under r 16.21 of the Federal Court Rules 2011 (Cth) – issues raised by the Applicant more appropriately addressed at trial – application dismissed.

PRACTICE AND PROCEDURE – application that First Respondent be dux litis on the defences of honest opinion and qualified privilege – application dismissed.

PRACTICE AND PROCEDURE – application for order for non‑standard discovery – application dismissed.

Legislation:

Federal Court of Australia Act 1976 (Cth) s 31A

Uniform Defamation Acts ss 28, 31

Federal Court Rules 2011 (Cth) rr 1.21, 16.21, 20.13, 20.14

Defamation Act 2005 (SA) s 29

Cases cited:

Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245

Cosco v Hutley (No 2) [2020] NSWSC 893

Faruqi v Latham [2018] FCA 1328

Feldman v Polaris Media Pty Ltd (No 2) [2018] NSWSC 1035

Feldman v Polaris Media Pty Ltd [2020] NSWCA 56

Fleming v Advertiser News Weekend Publishing Co Pty Ltd [2014] SASC 145

French v Triple M Melbourne Pty Limited [2008] VSC 548

Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152

Hanson‑Young v Leyonhjelm [2018] FCA 1688; (2018) 364 ALR 624

Harbour Radio v Ahmed [2015] NSWCA 290; (2015) 90 NSWLR 695

Hunt v Star Newspaper Co Ltd [1908] 2 KB 309

JWR Productions Australia Pty Ltd v Duncan‑Watt (No 2) [2020] FCA 236; (2020) 377 ALR 467

Moriarty & Wortley v Advertiser Newspapers Ltd (1998) 196 LSJS 395

O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289

O’Neill v Fairfax Media Publications (No 2) [2019] NSWSC 655

O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166

Parke v Rubenstein [2020] FCA 1466

Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473

S, DJ v Channel Seven Adelaide Pty Ltd [2009] SASC 6

Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15

TheHerald & Weekly Times Pty Ltd v Buckley [2009] VSCA 75; (2009) 21 VR 661

Wing v The Australian Broadcasting Corporation [2018] FCA 1340

Division: General Division
Registry: South Australia
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 82
Date of hearing: 22 September 2020
Counsel for the Applicant: Mr P Heywood‑Smith QC
Solicitor for the Applicant: Hamdan Lawyers
Counsel for the First Respondent: Ms L Barnett
Solicitor for the First Respondent: Banki Haddock Fiora
Counsel for the Third Respondent: Ms S Chrysanthou with Mr B Dean
Solicitor for the Third Respondent: Company Giles Pty Ltd
Table of Corrections
25 June 2021 In paragraph [27(d)] the word “Neil” is replaced with “Neill”.

ORDERS

SAD 12 of 2020
BETWEEN:

MELISSA PARKE

Applicant
AND:

COLIN RUBENSTEIN

First Respondent

THE HERALD AND WEEKLY TIMES PTY LIMITED

Second Respondent

DAVE SHARMA

Third Respondent

ORDER MADE BY:

WHITE J

DATE OF ORDER:

16 FEBRUARY…

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AGLC
Parke v Rubenstein (No 2) [2021] FCA 107
Case
[2021] FCA 107
Decision Date

CaseChat Overview and Summary

In Parke v Rubenstein (No 2), the Federal Court of Australia dealt with an interlocutory application brought by the applicant, a political candidate, against the first respondent, the Executive Director of the Australia/Israel & Jewish Affairs Council (AIJAC). The applicant sought the striking out of the defences of honest opinion and qualified privilege raised by the first respondent, an order for non-standard discovery, and an order that the first respondent be the dux litis on the defences of honest opinion and qualified privilege. The background to the dispute involved the applicant's pre-selection as a candidate for the Australian Labor Party and the subsequent dissemination of an email and an article by the first respondent, which the applicant claimed were defamatory.

The legal issues before the court included whether the defences of honest opinion and qualified privilege should be struck out, whether non-standard discovery was warranted, and whether the first respondent should be designated as the dux litis. The court examined the applicant's submissions and found them insufficient to warrant the striking out of the defences. The court held that the applicant's argument did not address the form and adequacy of the pleadings as required by the relevant rules and that certain issues, such as the nature of the defamatory matter, were better suited for determination at trial.

Furthermore, the court rejected the application for non-standard discovery, noting that the applicant had not demonstrated the necessity for such an order. The court also dismissed the application for the first respondent to be designated as the dux litis, finding that this matter was not appropriate for determination at the interlocutory stage. Consequently, the interlocutory application was dismissed, and the court invited the parties to address the issue of costs.

Orders

Orders of the court

1. The interlocutory application filed on 18 August 2020 is dismissed.

2. The Court will hear from the parties in respect of costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The trial in the action is to commence on 12 April 2021.Background Between 2007 and 2013, the applicant was the member for the seat of Fremantle in the House of Representatives in the Australian Parliament. On 7 April 2019, she was pre‑selected as the candidate for the Australian Labor Party in the election for the seat of Curtin in the House of Representatives to be held on 18 May 2019. The first respondent is the Executive Director of the Australia/Israel & Jewish Affairs Council (AIJAC). The second respondent was The Herald and Weekly Times Pty Ltd but the applicant discontinued her claim against that respondent shortly after the proceedings were commenced. The third respondent was Mr Sharma. He is the member of the House of Representatives for the seat of Wentworth in the State of New South Wales, having been elected on 18 May 2019. On 4 March 2019, some five weeks before her pre‑selection, the applicant had given a speech (the Speech) to a group known as the West Australian Labor Friends of Palestine in Perth. Following her pre‑selection, the applicant’s Speech attracted media attention, in consequence of which, on 12 April 2019, the applicant surrendered her pre‑selection. On 12 April 2019 (but it seems before the applicant’s surrender of her pre‑selection), the first respondent authorised an email (the Email) concerning the applicant’s Speech to be sent to a journalist at the second respondent. The Email said of the Speech:The comments by ALP candidate Melissa Parke are among the most extreme examples of anti‑Israel rhetoric ever voiced in Australia. They constitute nothing more than a laundry list of slanders, including discredited conspiracy theories and downright falsifications.Ms Parke’s comments, coming straight out of the talking points from the worst Israel haters, bring discredit to both her and the party she is representing. Ms Parke has publically expressed support for “the current Labor policy” but has acted in a way which is outside the spirit of this policy and as well as being an affront to all thinking Australians. AIJAC calls on Labor leadership to distance the party from Ms Parke’s outrageous claims. We have seen in other countries what happens when political parties turn to a blind eye towards fanatics and conspiracy theorists in their ranks. It is incumbent on the ALP leadership to ensure Australia does not follow the same route. The applicant pleads that the Email was also sent to media organisations but the first respondent denies that allegation. The applicant claims that the Email was defamatory. She pleads that the ordinary and natural meaning of the words in the Email was that she is a: (a) compulsive slanderer;(b) conspiracy theorist;(c) liar; and(d) fanatic. On 24 April 2019, the first respondent prepared an article entitled “Dangerous Israel obsessions in the ALP” (the Article). The Article was uploaded to the website of the AIJAC where it remained for many months. The first respondent also admits that a copy of the Article was sent to a number of persons by email. The applicant pleads a wider distribution and claims that the Article conveyed the following defamatory meanings of and concerning her, namely, that she:(a) published a fabricated story about the Israeli Military;(b) is an anti‑Semite;(c)is one who engages in anti‑Semitic tropes by suggesting that Israel exercises substantial influence over our political system; and(d)is one who lies by suggesting that Israel’s influence in our political system and foreign policies is substantial.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For these reasons, the application for discovery is refused.Conclusion The application to amend the filed Reply was contingent upon the strike out application succeeding. As it has not succeeded, this part of the interlocutory application need not be considered further. For the reasons given above, the interlocutory application of the applicant filed on 18 August 2020 is refused. I will hear from the parties with respect to costs.

Ratio Decidendi

Legal Principle Established

Counsel raised other matters in the oral submissions. I refer to these below.Consideration I am satisfied that a number of matters indicate that the striking out of the first respondent’s defence of honest opinion is inappropriate. First, the applicant’s submissions did not indicate how the identified paragraphs in r 16.21(1) were engaged presently. She submitted only that each of subparas (c), (d) and (e) “have application”, but did so without indicating how that was so by reference to the form of the first respondent’s pleading and the criteria for the application of each subparagraph. This is particularly pertinent because it is evident that the focus of r 16.21(1)(c), (d) and (e) is on the form and adequacy of the impugned pleading. Instead of directing attention to matters of that kind, [18]‑[20] of the applicant’s submissions set out above were directed to a perceived absence of evidence proposed to be led by the first respondent. Rule 16.21(1)(c), (d) and (e) are not directed to that subject matter. If the applicant had wished to contend that the first respondent’s defence has no reasonable prospect of success by reason of a lack of available evidence, her application should have been of a different kind, perhaps under s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). Secondly, the correctness or otherwise of the applicant’s assertion that “the pleaded imputations are all assertions of fact” is an issue which can be determined appropriately at the trial. In the circumstances of this case, it is not an issue appropriate to be determined on a strike out application under r 16.21. Thirdly, and contrary to the submission of the applicant in [18] set out above, s 31(1)(a) in the UDA requires that it be the “defamatory matter”, and not the pleaded imputations, which be an expression of opinion. The New South Wales Court of Appeal adverted to this aspect of s 31(1)(a) in Harbour Radio v Ahmed [2015] NSWCA 290; (2015) 90 NSWLR 695. While the Court did not, on my understanding, express a final view, it said:[43]The appellants noted that s 31 identified a defence “to the publication of defamatory matter”, language which differed from the defences of substantial truth (“justification”) in s 25 and contextual truth in s 26, both of which refer to the defamatory imputations, rather than the defamatory matter, as that which must be true. The case law, such as it is since the commencement of the Defamation Act on 1 January 2006, has not treated this distinction as significant.[44]The risk in treating the imputation as the matter which must be identified as an expression of opinion or fact is that the form of the imputation may not accurately reflect the language of the defamatory publication. That is significant, bearing in mind the contextual nature of the inquiry as to whether a statement is opinion.(Citation omitted) In three first instance decisions in New South Wales, McCallum J has accepted that the defence of honest opinion under s 31 is directed to the defamatory matter, rather than to the imputations specified by the plaintiff: O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [45]‑[46]; Feldman v Polaris Media Pty Ltd (No 2) [2018] NSWSC 1035 at [43]‑[44] and O’Neill v Fairfax Media Publications (No 2) [2019] NSWSC 655 at [81]‑[83], although her Honour has considered the meaning pleaded by the plaintiff to be relevant to the defence because it is the meaning found by the Court which is to be scrutinised for its fairness. The reasons of White JA in Feldman v Polaris Media Pty Ltd [2020] NSWCA 56 at [66] provide support for the proposition that it is the defamatory matter which is to be considered.