Wilson v Coxon [No 2]
[2015] WASC 197
•29 MAY 2015
WILSON -v- COXON [No 2] [2015] WASC 197
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 197 | |
| Case No: | CIV:2803/2013 | 1 APRIL 2015 | |
| Coram: | KENNETH MARTIN J | 29/05/15 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Paragraph 15 of defendant's defence struck out | ||
| A | |||
| PDF Version |
| Parties: | FRANK CULLITY WILSON ANNA LOUISE COXON |
Catchwords: | Civil law Defamation Strikeout Popular or false innuendos Legal or true innuendos Abandonment of Polly Peck imputation plea No plea of justification Stand-alone plea of facts in attempted mitigation of damages Strikeout application Application of Burstein Aspects Provocation Directly relevant background context |
Legislation: | Defamation Act 2005 (WA) |
Case References: | Burstein v Times Newspapers Ltd [2001] 1 WLR 579; [2001] EMLR 14 Godfrey v Demon Internet Ltd (No 2) [1999] EWHC QB 240 Lower Murray Urban & Rural Water Corporation v Di Masi [2014] VSCA 104; [2014] Aust Tort Reports 82-187 Plato Films Ltd v Speidel [1961] AC 1090; [1961] 2 WLR 470 Polly Peck (Holdings) plc v Trelford [1986] QB 1000; [1986] 2 WLR 845 Scott v Sampson (1882) 8 QBD 491 Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469 Warren v The Random House Group Ltd [2008] EWCA Civ 834; [2009] QB 600 West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387 Wilson v Coxon [2014] WASC 268 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ANNA LOUISE COXON
Defendant
Catchwords:
Civil law - Defamation - Strikeout - Popular or false innuendos - Legal or true innuendos - Abandonment of Polly Peck imputation plea - No plea of justification - Stand-alone plea of facts in attempted mitigation of damages - Strikeout application - Application of Burstein - Aspects - Provocation - Directly relevant background context
Legislation:
Defamation Act 2005 (WA)
Result:
Paragraph 15 of defendant's defence struck out
Category: A
Representation:
Counsel:
Plaintiff : Mr C E Chenu
Defendant : Mr S M Davies SC
Solicitors:
Plaintiff : Bennett + Co
Defendant : Lemonis & Tantiprasut Lawyers
Case(s) referred to in judgment(s):
Burstein v Times Newspapers Ltd [2001] 1 WLR 579; [2001] EMLR 14
Godfrey v Demon Internet Ltd (No 2) [1999] EWHC QB 240
Lower Murray Urban & Rural Water Corporation v Di Masi [2014] VSCA 104; [2014] Aust Tort Reports 82-187
Plato Films Ltd v Speidel [1961] AC 1090; [1961] 2 WLR 470
Polly Peck (Holdings) plc v Trelford [1986] QB 1000; [1986] 2 WLR 845
Scott v Sampson (1882) 8 QBD 491
Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469
Warren v The Random House Group Ltd [2008] EWCA Civ 834; [2009] QB 600
West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387
Wilson v Coxon [2014] WASC 268
1 KENNETH MARTIN J: I am dealing with a further strikeout application brought by the plaintiff in these proceedings. This time the application was brought against the defendant's re-amended defence. The attack is purely against one paragraph in that pleading; namely par 15, which pleads in the following terms:
Further and alternatively, if, which is denied, the Plaintiff is entitled to any damages, the Defendant relies on the following matters in mitigation of any such damages.
- There follows pars 15.1 - 15.12, the text of which I will set out later.
2 It will be recalled that in my earlier interlocutory reasons, Wilson v Coxon [2014] WASC 268, delivered on 29 July 2014, that I was concerned with a challenge by the plaintiff brought against what was then the defendant's attempted plea of justification in respect of an alternate imputation - distinct to the imputation raised by the plaintiff. The attack against what might be referred to as the Polly Peck imputation succeeded and the imputation was struck out, but with leave to re-plead (Polly Peck (Holdings) plc v Trelford [1986] QB 1000; [1986] 2 WLR 845). However, those reasons also led to a reformulation of the plaintiff's imputations under its amended statement of claim pleading of 29 August 2014.
3 It will be remembered that essentially the plaintiff is complaining about a publication and then a republication of matter, arising from an oral statement to a journalist (alleged to be made between 16 November and 7 December 2012), namely by the defendant to Mr Tim Boreham (a journalist at The Australian newspaper) and said in the aftermath of the annual general meeting of the public corporation TFS Corporation Ltd (TFS) around that time.
4 The words complained of that are said to have been uttered by the defendant to Mr Boreham (taken from par 3 of the amended statement of claim and which the defendant denies) are as follows:
Mr Frank Wilson failed to vote proxies for 375,000 of my shares in TFS against his re-appointment despite me indicating on my proxy form my intention to vote against his re-appointment.
5 Subsequent to that utterance articles appeared in The Australian newspaper and online and authored by Mr Boreham concerning TFS. The full text of the internet publication (which is complained of as the second re-publication of the utterance) can be found attached as sch A to my previous reasons. Most relevantly to current issues concerning the defendant, Ms Coxon, are these words, found towards the end of the article:
One signatory to the notice, Anna Coxon, alleged Mr Wilson had failed to vote proxies on her 375,000 shares against his re-appointment.
Ms Coxon, a former TFS employee now based in Switzerland, said she had indicated her intention on the proxy form.
Mr Wilson confirmed that he did not vote the shares but said he had not received instructions from Ms Coxon.
The share parcel was immaterial to the outcome.
6 Earlier in that article published by The Australian under the heading 'Big stink for sandalwood grower as TFS threatens to make shareholders pay over EGM', were these passages:
Citing a range of corporate governance and performance concerns, the group is seeking to remove executive chairman, founder and 16 per cent holder Frank Wilson.
…
A key concern is Mr Wilson's role as executive chairman and chief executive since September's unexplained departure of chairman and former politician Richard Alston.
TFS claims the notices were not properly executed because they were not signed by the requisite number of shareholders.
It also maintains the notice is not valid in the case of all directors but Mr Gilchrist, given they were subsequently re-elected at the company's fiery November 16 annual general meeting.
Mr Myles said the group had sent a letter asking for the extraordinary general meeting to go ahead.
7 At the conclusion of my July 2014 reasons, I had noted at [78] a supplementary policy argument then run by the defendant, to support its Polly Peck plea. This had been articulated on the basis that there was 'no utility in a strikeout application, because the same materials [then particularised under par 14] would also be adduced by [the defendant] as evidence in mitigation of any damages suffered by the plaintiff at a trial'. At [81], having earlier referred at [79] to the observations by Steytler P in West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387 [61] - [63] (whilst his Honour had been mentioning decisions of the English Court of Appeal in Burstein v Times Newspapers Ltd [2001] 1 WLR 579; [2001] EMLR 14 and Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469), I observed:
I would reserve to another day the question of whether or not such materials might be admissible on a stand alone basis under a general mitigation of damage plea by a defendant. I do express an in principle prima facie reservation over whether such evidence, wholly unrelated to the plaintiff's asserted disobedience to a proxy instruction sting, can be legitimately admissible, if only introduced at trial as mitigation evidence against damages. The underlying difficulty seems to be that such evidence strays a long way distant from what Mr Boreham or the readers of The Australian (holding the extra knowledge as explained earlier) might have understood as the plaintiff's proxy disobedience grievance, which is the only relevant sting raised by the plaintiff.
8 In the end, I struck out the defendant's Polly Peckimputation as pleaded, but I gave leave to re-plead.
9 As is apparent, matters have now advanced somewhat, at least in a pleading sense, since those first interlocutory reasons were published. Significant new developments have arisen in three principle respects.
10 First, the plaintiff has amended its original imputations contended as arising out of the utterance (in the natural and ordinary meaning of the spoken words). It has also added a plea, put further or in the alternative, concerning the meaning of the words uttered to Mr Boreham, upon a basis of his alleged knowledge of extrinsic facts colouring the interpretation of the words used in the utterance. In other words, the plaintiff has added a true innuendo plea by its par 5, in respect of three more contended meanings. These amendments were made under the plaintiff's amended statement of claim of 29 August 2014.
11 Second, in terms of developments, the defendant has filed an amended defence of 3 October 2014, then followed by a re-amended defence on 15 January 2015. Under these pleas the defendant no longer seeks to advance any plea of justification. Nor does it seek to run a Polly Peck plea. What was formerly par 14 of the defendant's defence, was excised under these amendments. But correlatively with those new changes, it can also be seen that the former particulars of justification as were provided to par 14 have effectively migrated, to become the subparagraphs of par 15. I set out the introductory text of par 15 earlier in these reasons.
12 So par 15 in the re-amended defence now manifests as a stand-alone plea as to matters solely sought to be raised by the defendant, 'in mitigation of any such damages'.
13 Essentially then, the pleaded position of the defendant, currently:
(a) raises some issues as to limitation of action, by reason of s 15 of the Limitation Act 2005 (WA) (see par 3.1 of the re-amended defence);
(b) under par 4, denies the alleged meanings of the utterance as contended for by the plaintiff, or that any such meanings were defamatory of him;
(c) displays a denial in respect of all the true innuendo meanings as are now contended for by the plaintiff;
(d) denies all republications;
(e) relies upon an offer of amends it says was made on 10 October 2013 to the plaintiff's solicitors (par 14.1); and
(f) seeks to raise under par 15 various material - but purely on the basis that this is raised in attempted mitigation of damages, should the defendant ultimately be held liable to the plaintiff, upon any of the plaintiff's causes of action succeeding at trial.
14 Third, and as regards (f) mentioned above, by the plaintiff's present application of 15 January 2015, consequent upon the conferral directions I made on 5 February 2015, the plaintiff has applied to strike out the mitigation plea under par 15, as failing to disclose any reasonably arguable cause of action, or as being embarrassing.
15 This latest interlocutory application, as will be seen, is brought by the plaintiff upon the basis that the defendant's attempted invocation of principles allowing the pleading of matters purely in mitigation against damages should it fail on liability at trial is flawed. This clash of positions arises out of the Court of Appeal of England and Wales decision in Burstein v Times Newspapers Ltd. The plaintiff argues that, correctly evaluated, par 15 of the defendant's re-amended defence is a misconceived attempt at deploying Burnstein in circumstances where it is not available to the defendant.
16 The defendant has sought to defend its par 15, upon the basis that the materials it wishes to ventilate at trial under par 15.1 - 15.12, are properly raised by it under Burstein. Further, the defendant says it is wholly inappropriate, in an interlocutory context to seek to dismiss at this time its mitigation plea as, in effect, unarguable. So the defendant argues that the matters sought to be raised by it under par 15 are very much open for it to invoke via Burstein.
17 Before turning to the contentious subparagraphs within par 15 of the re-amended defence, it is necessary contextually to set out all the defamatory imputations which the plaintiff complains about. These imputations are formulated now as either arising out of the natural and ordinary meaning of the words allegedly uttered by Ms Coxon to Mr Boreham (ie as popular or false innuendos, by par 4 of the amended statement of claim), or as true or legal innuendos, upon the incumbent addition of Mr Boreham's asserted knowledge of specified extrinsic facts at the time the utterance was made to him - under par 5 of the amended statement of claim.
18 It is necessary to undertake this degree of alleged innuendo scrutiny in a context of, amongst other things, identifying the particular sector of the plaintiff's reputation in which he contends he was injured by the defendant's utterance to Mr Boreham and by alleged republications which followed via The Australian newspaper, or over the internet.
19 I also should mention in passing that the defendant raised a formal objection to the bringing of the application to strikeout par 15, on the basis that this should have happened a lot earlier, because 'paragraph 15 has stood since 17 February 2014'. That submission is not strictly correct - although the material now seen as subparagraphs to par 15 was raised earlier as the particulars of partial justification to par 14 - under the former Polly Peck plea - which in its former iteration was struck out and then, notwithstanding the grant of leave to re-plead, has not been the subject of attempted rehabilitation by the re-amended defence.
20 I would reject the defendant's formal objection complaining that the strike out application is brought too late, is oppressive or offends basic case management principles. Clearly, things have changed a good deal conceptually under the evolving pleadings, since I evaluated the Polly Peck pleas under my previous reasons of 29 July 2014 and particularly then, the defendant's supplementary policy argument at [78]. Having at that time reserved for later (if necessary) the question of my stand-alone raising of such matters under a plea made purely as to the mitigation of any damages, my assessment is that the underlying pleading landscape has significantly altered. This is now the 'other day', I had obliquely anticipated at [81] of those earlier reasons.
21 To the extent the defendant argues that leave is required to bring this application, given all the developments which have occurred, I would, based on the obvious case management utility in clearing up, if possible, a potentially diverting issue before the trial, readily grant that leave, if now required. Furthermore, the strike out challenge as now raised, although conceptually testing, is discrete. If there is merit in the attack raised by the plaintiff under its proposition that the so called Burstein matters raised under par 15 are conceptually untenable, then an early interlocutory determination, in my view, is an effective case management remedy to address that situation. I do accept that the plaintiff faces a high threshold to demonstrate that the plea raised by the defendant under par 15, is untenable. But I am not prepared to shut the plaintiff out of having a legitimate opportunity to advance its challenge - which on my assessment essentially distils down to whether the par 15 plea can arguably fit under the umbrella of a permissible Burstein plea, or, as the plaintiff would say, it demonstrably does not.
22 A key component of the plaintiff's challenges and submissions to this end is his contention that the sector of his reputation tarnished under the meanings he says are carried from the utterance and its republication, are wounds to his public reputation in the corporate sector, arising by reason of what he complains has been wrongly said about him by Ms Coxon as to a contravention of his duty and of the law, whilst acting in the capacity as a public company director or officer (as a shareholders' meeting chairman).
The plaintiff's alleged meanings
23 I proceed then to the defamatory imputations, as are contended for by the complainant under his amended statement of claim.
24 First, by par 4 the plaintiff now pleads:
The Utterance to Mr Boreham in its natural and ordinary meaning meant and it was understood to mean that the Plaintiff:
4.1 had failed in his duty as a proxy and as an officer of a corporation, namely TFS by not acting in accordance with directions given by a shareholder for the voting of shares in TFS on a poll of its shareholders; and
4.2 by failing to act in accordance with directions given by a shareholder on a poll of TFS shareholders concerning his reappointment as an office holder of TFS, the Plaintiff put his own self-interest in being reappointed ahead of his duty as the shareholder's proxy and as an office holder in TFS, to act as directed.
25 The plaintiff as I mentioned, also raises the following three true (legal) innuendos via par 5, in these terms:
Further or alternatively, by reason of Mr Boreham's knowledge of the matters particularised below, the Utterance to Mr Boreham meant and was understood to mean by way of innuendo, that the Plaintiff:
5.1 had failed his duty as executive chairman of a listed corporation, namely TFS, by not acting in accordance with directions given by a shareholder for the voting of shares in TFS on a poll of its shareholders;
5.2 by failing to act as proxy in accordance with directions given by a shareholder on a poll of shareholders of a listed corporation, TFS, concerning his reappointment as its executive chairman, the Plaintiff put his own self-interest in being reappointed ahead of his duty as the shareholder's proxy and executive chairman of TFS, to act as directed;
5.3 in failing to vote on a shareholder's resolution at the 2012 annual general meeting of a listed corporation, TFS (AGM) of which he was chair, in the manner specified in a proxy held by him, had committed an offence contrary to the Corporations Act.
26 Extrinsic facts are also provided by the plaintiff to the contended true innuendo meanings, at par 5:
Particulars of Extrinsic Facts
At the time of publication of the Utterance to Mr Boreham, Mr Boreham knew and it was the fact that:
(a) TFS was a corporation whose securities were listed for quotation on the ASX;
(b) the Plaintiff was the executive chairman of TFS;
(c) TFS held the AGM on 16 November 2012 (alternatively, knew the AGM had recently been held);
(d) the Plaintiff was the chairman of the AGM;
(e) the business of the AGM included a shareholders resolution for the reappointment of the Plaintiff as Executive Chairman of TFS;
(f) the chair of a meeting of shareholders of a company who is appointed a proxy commits an offence under the Corporations Act if he does not vote on a poll in the way that is specified in his appointment;
and would by reason of such knowledge have understood the Utterance to Mr Boreham to bear the meanings set out in this paragraph.
27 A similarity in underlying structure, between imputations par 4.1 and par 4.2 to imputations par 5.1 and par 5.2, can readily be seen. Essentially, they contend for 'stings' against the plaintiff upon the basis of alleged failures to act in accord with an instruction from a shareholder for a forthcoming vote of shareholders, under a written proxy document given to him (as chairman of the shareholders meeting) by the defendant - and thereby failing in his duty as an officer of TFS, or by ignoring the voting direction - putting self-interest in his reappointment to the TFS board of directors ahead of his duty as the proxy holder.
28 Distinct imputation par 5.3 also seizes upon the alleged failure of the plaintiff to vote in accord with the direction as specified in a shareholder's proxy instruction for the vote, but from a graver perspective of suggesting the commission of an offence by the plaintiff by that conduct, contrary to the Corporations Act 2001 (Cth) - see the observations upon that breach of the law question in the earlier reasons at [16].
29 It may also be seen that underlying each of the imputations contended for under par 4 and par 5 of the amended statement of claim, is a contention as regards the disobedience alleged against the plaintiff against a binding shareholders voting instruction, received under a proxy issued by a shareholder of TFS. That sentiment emerges from the words of the utterance, which, as I observed in the earlier reasons, expressly mentions the word 'proxies' in the first line, then the word 'proxy' in the second line of the alleged utterance words.
The Burstein facts sought to be raised
30 I now move to mention the subparagraphs of par 15 of the re-amended defence, which present in the following terms:
15.1 The Defendant repeats paragraph 2.1 and 2.2 hereof.
[2.1 at all material times the Defendant was the legal owner of 3,453,519 ordinary fully paid shares in TFS;
2.2 at all material times Domenica Nominees Pty Ltd (Domenica) held 375,000 ordinary fully paid shares in TFS on bare trust for the Defendant;]
15.2 At all material times the Defendant was entitled to direct Domenica to transfer legal ownership of the shares to the Defendant.
15.3 At all material times the Defendant had an entitlement to direct Domenica how to vote the shares.
15.4 At all material times the Plaintiff was a director and secretary of and had effective control of Domenica.
15.5 On or about 7 November 2011 and 25 January 2012 the Defendant requested the Plaintiff to cause Domenica to transfer legal ownership of the 375,000 shares to the Defendant.
15.6 On or about 26 January 2012 the Plaintiff responded to the request by asking that the transfer of the legal ownership of the shares be deferred for reasons related to the Plaintiff's convenience.
15.7 By 7 December 2012, Domenica had not transferred the 375,000 shares to the Defendant.
15.8 On 17 October 2012, TFS announced to the ASX that its AGM would be held on 15 November 2012, which is the date on which it was held.
15.9 The Defendant was a signatory to two notices to TFS, which were signed by the Defendant on or about 15 October and 8 November 2012. The notices were delivered to TFS on or about 15 October and 8 November 2012 and came to the attention of the Plaintiff prior to the AGM of TFS held on 15 November 2012. The notices (amongst other matters):
(c) [sic] put TFS on notice of the signatories' intention to move a resolution for the removal of the Plaintiff as a director of TFS;
(d) [sic] requested that TFS call a general meeting to consider and vote on a resolution that the Plaintiff be removed as a director of TFS.
15.10 The Defendant lodged a proxy form for the AGM appointing the Chairman, who was the Plaintiff, as her proxy and stated that she wished the Plaintiff to vote against the resolution for his re-election as a director of TFS.
15.11 By reason of the matters particularised at paragraphs 15.1 to 15.10 above the Plaintiff knew that it was the Defendant's wish that the 375,000 shares held by Domenica on bare trust for the Defendant be voted against the Plaintiff's re-election as a director of TFS.
15.12 The Plaintiff did not cause Domenica to vote the 375,000 shares against his re-election as a director of TFS.
31 As a general overview of what is sought to be raised under the material in subparagraphs of par 15 above, it may first be observed that what Ms Coxon seeks to raise as being relevant background factual context material, would be submitted mainly for the consideration of the judge, even in a jury trial, going largely to the award of damages (see s 22(3) of the Defamation Act 2005 (WA)).
32 By par 15 it is, in effect, assumed the plaintiff has been defamed in one or more of the respects, as identified under par 4 or par 5 of the amended statement of claim.
33 By par 15 Ms Coxon, it seems, accepts that there was never a proxy document issued from her and directed to anyone - concerning her voting of 375,000 shares in Domenica. But nevertheless, and notwithstanding it would seem par 15 proceeds on the basis she was wrong about saying anything about giving a proxy direction for those shares to Mr Boreham (on the plaintiff's case, which she denies), she contends by par 15, in effect, that Mr Wilson still, by reason of alleged knowledge he held, should have taken steps in his capacity as an officer of the corporation Domenica (acting as a trustee) to cause (presumably by the issue of proxy document) 375,000 Domenica shares in TFS (held beneficially in TFS for Ms Coxon) to have been voted at the meeting in the same way as Ms Coxon's legally owned 3,453,519 shares were directed to be voted - for which shares she had (presumably as legal owner) actually lodged a proxy for this AGM and directed the plaintiff (as chair) to vote against the resolution for his re-election as director of TFS at that meeting.
34 The real question then is whether any of that par 15 material can be argued as possibly relevant to an assessment of damages, applying Burstein.
35 In the end, my view is that it cannot, as I explain below.
Arguments
36 As I mentioned, neither party contended that the Burstein decision was wrong, or should not be applied in Western Australia.
37 To the contrary, both the plaintiff and the defendant accepted Burstein as now being a part of Australian defamation law. I proceed upon that basis.
38 But two related questions of greater difficulty arise. They are: what is the scope of the Burstein decision? And, then: how is it applied?
39 The plaintiff (as applicant) argues that Burstein does not apply to embrace the collected circumstances as are sought to be raised at trial under par 15 by the defendant. The defendant says it does.
40 In order to address that question it is necessary to consider more closely the Burstein decision and some subsequent cases which have applied it, or not followed it.
41 At the outset I must say that I would assess the underlying factual circumstances in Burstein to be rather unique, as will be seen. The emergence of Burstein now presents as something of an exception to the rule established by leading cases such as Scott v Sampson (1882) 8 QBD 491 and in the House of Lords in Plato Films Ltd v Speidel [1961] AC 1090; [1961] 2 WLR 470 precluding the adducing by a defendant of evidence of particular incidents in a plaintiff's life, when seeking to lead 'bad character evidence' against a plaintiff's reputation in mitigation of damages at a trial.
The Burstein decision as invoked by the defendant
42 The defendant's submissions invoking Burstein, seek to support par 15, on the basis that the plea is 'at least arguable'.
43 They contain the following at par 13 of the defendant's written submissions of 20 March 2015:
(a) [t]he UK Court of Appeal made it clear in Burstein v Times Newspapers Limited [2001] 1 WLR 579 that:
(i) Evidence to the effect that the plaintiff's conduct has directly provoked the publication of which the plaintiff complains is admissible in mitigation of damages (at [25]).
(ii) A defendant can also rely on directly relevant background context because it is relevant to the damage which the plaintiff claims has been caused by the defamatory publication (at [42], [47] - [48]).
(b) The case has been followed or referred to with approval by the UK Court of Appeal in Turner v News Group Newspapers Limited [2006] 1 WLR 3469; by the New South Wales Court of Appeal in ABC v McBride (2001) 53 NSWLR 430 at [14]-[15], by Newnes M in Anderson v AH Kit [2004] WASC 194 at [31], [37] and [38], by the Court of Appeal in West Australian Newspapers Ltd v Elliott [2008] WASCA 172 at [62]-[65] per Steytler P and by Kaye J in Belbin v Lower Murray Urban & Rural Water Corporation [2012] VSC 535 at [313] [affirmed on appeal in Lower Murray Urban & Rural Water Corporation v Pi Masi [2014] VSCA 104; [2014] Aust Torts Reports 82-187].
(c) In Turner v News Group Newspapers Limited the proposition that the test for 'directly relevant background context' was obscure was rejected, and the Court of Appeal observed that merely because there may be cases where it is not easy to determine whether the test in Burstein is met, does not mean the test is an inappropriate one.
(d) The observation in Turner v News Group Newspapers Limited that Courts needed to proceed with some caution in applying the test, is not a suggestion that any aspect of Burstein is wrongly decided, it is merely an exhortation for Courts to take care in applying the test.
(e) The remarks in Channel 7 Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [263]-[266] are to similar effect, with the Court observing that in the absence of substantive argument from either party in the case on the application of Burstein the Court did not propose to delve into the ramifications of the decision in that case.
44 From that, it emerges that, possibly, two aspects of the Burstein decision are invoked here by the defendant, to support par 15, namely:
(a) as regards the plaintiff's conduct in indirectly 'provoking' the publication of which the plaintiff complains (Burstein [25]) (the 'Burstein Provocation Principle'; and
(b) by providing 'directly relevant background context' that is said to be 'relevant to the damage' which this plaintiff claims has been caused by the defamatory publication (the 'Burstein Context Principle').
A Burstein 'provocation' principle
45 Towards this aspect of the attempted application of Burstein by the defendant, it says (under par 17 of its written submissions) supporting the matters it would raise at trial under par 15 of its pleading, that:
(a) In so far as provocation is concerned, the defendant had been requesting the plaintiff to cause Domenica to transfer legal ownership of the 375,000 shares to the defendant for some considerable time; the plaintiff had been resisting that transfer for reasons related to his own convenience; the plaintiff knew that the defendant wanted the plaintiff removed as a director; and the plaintiff must have known that the defendant would want any shares she owned (whether legally or beneficially) to have been voted in favour of his removal.
(b) The plaintiff's act in abstaining from voting on the specific group of 375,000 shares (which act would have required him to actually give attention to the matter and make a position decision not to vote the shares in the way the plaintiff knew that the defendant would have wanted them voted) was an act of self interest by the plaintiff that (at least arguably) amounts to an act of provocation that can be relied on by the defendant in mitigation of damages.
(c) In so far as directly relevant background context is concerned, the matters pleaded in paragraph 15 meet, or at least arguably meet, that test.
(d) Even if the test is that the material must be so clearly relevant to the subject matter of the libel or to the plaintiff's reputation or sensitivity in that part of his life that there would be a real risk of the jury assessing damages on a false basis if they were kept in ignorance of the facts to which the evidence relates, the matters pleaded in paragraph 15 meet, or at least arguably meet, that test.
(e) That is so if for no other reason than the fact that the plaintiff complains of an imputation to the effect that he acted in his own self interest in being reappointed. The conduct pleaded is closely related to the plaintiff's sensitivity in that part of his life.
(f) Having regard to the plaintiff's conduct pleaded in paragraph 15, he could not have felt much, if any, genuine offence or hurt as a consequence of the matter complained of.
(g) Further, in light of that material it would be artificial and unfair on the defendant if the jury was to assess damages without knowledge of the material. It is directly relevant background context that the defendant is entitled to raise in mitigation of damages.
46 It is necessary to turn to specific passages within the Burstein decision in relation to the defendant's asserted dual invocation first as regards so-called (indirect) acts of 'provocation' by the plaintiff and second, as regards par 15's alleged provision of 'directly relevant background context'.
47 As regards provocation, it is clear from Burstein that May LJ (with whom Aldous LJ agreed at [63]; and with whom Sir Christopher Slade also 'fully agreed' at [53], albeit adding observations of his own upon the question of admissibility of the evidence) - was not, at [25] of the reasons, addressing any new principle. In fact, a close analysis of preceding [23] and [24] reveals that May LJ's remarks at [25] were a culmination of his assessment of existing case authority and particularly what was gleaned from Gatley on Libel and Slander (9th ed, 1998)[33.44] - [33.46] in relation to 'activities that can be causally connected to the publication of the libel of which the plaintiff complains' [24]. After his 9th edition Gatley reference, May LJ continued:
A defamatory publication is not justified or excused by showing that the claimant himself has been guilty of similar conduct [24].
48 I pause at this point to observe that towards present circumstances, it is not at all contended that this plaintiff had ever issued any defamatory publication against the defendant - in a period preceding her alleged utterance to the journalist from The Australian newspaper, Mr Boreham - which is complained of. Accordingly, any attempted invocation of a direct 'provocation' principle by the defendant, would manifest as wholly inappropriate and unsupportable on the current facts.
49 May LJ continued as regards a provocation principle:
But where a claimant has made a defamatory publication against the defendant which may fairly be said to have provoked the defamatory publication by the defendant of which the claimant complains, evidence of the claimant's conduct is admissible. It can sensibly be said in these circumstances that the claimant's conduct was causally connected with the defamatory publication of which he complains and that he brought it upon himself. In the present case, there was no causal connection whatever between anything the claimant may have said or done in 1994 or subsequently which provoked the defendant newspaper to publish the words complained of. The claimant simply never made a defamatory publication against the newspaper. But Gatley on Libel and Slander, p 851, para 33.46, suggests the possibility that this area of admissible evidence in reduction of damages may not be so narrowly confined. Reference is made to a passage in the judgment of Blackburn J in Kelly v Sherlock (1866) LR 1 QB 686, 698. For a number of reasons, I do not consider this particular old case helpful in the modern procedural context. It was decided before the Judicature Acts 1873 (36 & 37 Vict c 66) and 1875 (38 & 39 Vict c 77), let alone the Civil Procedure Act 1997. There was no issue about whether the evidence in question was admissible: it had already been admitted. Blackburn J's remarks were not centrally relevant to the point in issue which was whether the one farthing damages awarded by the jury was so palpably too little that the court should order a new trial [24].
50 May LJ concluding as to provocation, said at [25]:
It seems to me that it is intrinsically just that a court assessing libel damages should receive evidence to the effect that the claimant's conduct has directly provoked the publication of which he complains. Typically, if there were a heated slanging match between claimant and defendant, and the publication complained of was in retaliation to a publication by the claimant defamatory of the defendant, there would be no sense or justice in excluding evidence of the claimant's publication. It would be part of the context in which the publication complained of was made and should normally, depending on the facts, be admitted whether or not it would be likely to reduce the claimant's award of damages. It may be supposed that a claimant who brings a defamatory publication on himself will normally receive a lower award of damages than a claimant who has been defamed without provocation. There is ample support in decided cases for admitting evidence of this kind of direct provocation: see for example Broome v Cassell & Co Ltd [1972] AC 1027,1071.
51 It may be seen from [25] above, that May LJ in Burstein, was only addressing at that point the application of settled case authority, as regards acts of so called 'direct provocation', particularly in a context of the absence of any sense or justice in 'excluding evidence of the claimant's publication'.
52 Hence, towards present circumstances, the problem for the defendant is that there is an absence of any preceding publication by this plaintiff that might, even arguably, fall within the possible application of a provocation principle emerging from those aspects of the Burstein decision.
53 Likewise, there is also nothing to be found at [26] concerning May LJ's discussion of a decision of Moreland J in Godfrey v Demon Internet Ltd (No 2) [1999] EWHC QB 240 (as an exceptional case) to advance any of the defendant's arguments about any wider provocation principle as being applicable to mitigation of damages issues in defamation, arising out of Burstein. To that end, I note also these later observations of Sir Christopher Slade:
Justice obviously requires the admissibility of evidence as to actions by a plaintiff which have directly provoked the libel in question. In the present case, however, as May LJ has pointed out, nothing which the claimant may have said or done in 1994 or subsequently can be said to have caused or provoked the defendant newspaper to publish the words complained of [57].
54 Those remarks would be of equal application to present circumstances. Accordingly to the extent that the defendant strains for some 'provocation' platform to support par 15, arising from Burstein, I reject that as untenable. Hence it must be to a second principle from Burstein that recourse is made to defend par 15, if possible, and so I must turn to other passages from that decision to see if any arguable support can be found in that quarter.
Sir Christopher Slade's observations in Burstein
55 Before leaving the concurring observations of Sir Christopher Slade in Burstein, it is timely to note his close formulation ofprinciples in what he considered was a 'special case' on its facts concerning a plaintiff who had deliberately sought for himself a 'particular kind of reputation'. Sir Christopher had observed:
May LJ has nevertheless concluded that, within the limits summarised in paragraph 41 of his judgment, parts of the particulars on which the defendants wished to rely should have been admitted as a matter of case management and justice. He considers that there are matters which are directly relevant background facts and explain the context in which the defamatory publication came to be made. He considers that they were accordingly admissible in evidence and should have been put before the jury because they were directly relevant to the damage to the claimant's reputation suffered by him as a result of the publication. I agree, but add the following observations since I consider this to be a special case on its facts.
I regard this as a case where, on the facts pleaded, the claimant has deliberately sought for himself a particular kind of reputation, that is to say as a militant opponent of modernist atonal music who has been prepared, on at least one occasion, to give effect to his opposition by action, as well as words [58] - [59].
- Sir Christopher Slade then set out the significant six facts referrable to the 'reputation' which Mr Burstein had deliberately sought for himself. However, note Mullis A and Parkes R, Gatley on Libel and Slander (12th ed, 2013) [33.43] - [33.46] especially at [33.45] concerning some level of disagreement over aspects of Sir Christopher's formulation in Burstein.
The facts underlying Burstein
56 It is convenient to take this statement of the facts concerning Burstein from their subsequent exposition by the Court of Appeal of England and Wales some years later, in Warren v The Random House Group Ltd [2008] EWCA Civ 834; [2009] QB 600 (Sir Anthony Clarke MR, May & Wilson LJJ) at [81]:
In Burstein's case [2001] 1 WLR 579 the defamatory allegation was that the claimant was 'an aggressively self-righteous, rather slushy composer who used to organise bands of hecklers to go about wrecking performances of modern atonal music'. The defendant did not seek to justify the allegation that the claimant organised the wrecking of such performances. It was held, however, that, in relation to the jury's assessment of damages, the trial judge had been wrong not to allow the defendant to adduce evidence that: (a) the claimant was associated with, indeed had claimed to be the co-founder of, a group of militant campaigners against atonal music called 'The Hecklers'; (b) on the day of a performance of 'Gawain' by Birtwistle at the Royal Opera House, 'The Hecklers' publicly invited the audience to join them in booing at the end of the performance; (c) the claimant attended the performance and at the end joined others in booing and hissing. Such evidence was admissible because it was directly relevant to the damage caused by the publication to the claimant's reputation: per May LJ, at para 42. Sir Christopher Slade added, at para 59, that it showed that the claimant had deliberately courted a reputation as a militant opponent of atonal music. Indeed the defamatory publication was part only of a single sentence which, without such explanatory context, was - so it seems to us - hardly susceptible to a reasoned award of damages. On the other hand the judge had been right not to allow the defendant to adduce evidence that the claimant had made grandiose comparisons of his own compositions with those of great romantic composers such as Brahms and Puccini: per May LJ, at para 41.
Burstein: 'The Context Principle': 'Directly relevant background context'
57 It is necessary to turn back to [41] of May LJ's reasons in Burstein. His Lordship said there (omitting some factual references):
Considering the decision as to admissibility which the judge had to make in the present case in the first instance as a matter of case management and of what is just, I consider that some parts of the particulars on which the defendants wanted to rely should have been admitted. There was a background context to the defamatory publication. To keep that away from the jury was, I think, to put them in blinkers. To determine the relevant background context and to confine it properly, it is necessary to start with the defamatory publication itself. This was that the claimant 'used to organise bands of hecklers to go about wrecking performances of modern atonal music, particularly anything by Sir Harrison Birtwistle'. Relevant confined direct background context to this publication would, I think, include that there was in 1994 a group who called themselves 'The Hecklers', that the claimant was associated with the group and that he subsequently claimed to have been its co-founder; that he dissociated himself from The Hecklers' boorish tactics of shouting down the opposition in a letter to 'The Times' dated 7 April 1994; that Frederick Stocken, under the name of The Hecklers, encouraged people to join him at the performance of Gawain at the Royal Opera House on 14 April 1994 when they would be booing at the end; that there was no interruption of Gawain that evening during its performance but that there was a bit of booing at the end; and that the claimant was in the audience and joined in the booing. On the other hand, in my view, much of the rest of the material in the proposed particulars was tendentious and essentially irrelevant to the subject matter of the publication complained of. A proper application of the Civil Procedure Rules would have excluded it. The material to which I have just referred as relevant is not intended to indicate that I would exclude literally everything else. But I would certainly, for instance, exclude most of paragraph (2) and the whole of paragraph (3). ... I think, on balance, that the tone of the claimant's publicly expressed attitude to The Hecklers and what they did should have been admitted. That would have appeared sufficiently from an appropriately confined selection of the documents to which the defendants wanted to refer.
58 Having delivered at [41] what appears to have been a rather fact specific analysis of aspects of what had been globally rejected as proposed particulars by the primary judge, May LJ continued:
In my view, permitting the defendants to rely on the directly relevant background context in the way in which I have described would not offend anything said in Scott v Sampson 8 QBD 491 or Speidel v Plato Films Ltd [1961] AC 1090. The material to which I have referred as directly relevant background context was, as I have indicated, recognised in Speidel v Plato Films Ltd as being admissible as the circumstances in which the publication came to be made. In the present case, those circumstances are not sensibly limited to the concert in memory of John Smith and the fact that the claimant's music was played at it. For practical purposes, every publication has a contextual background, even if the publication is substantially untrue. In addition, the evidence which Scott v Sampson excludes is particular evidence of general reputation, character or disposition which is not directly connected with the subject matter of the defamatory publication. It does not exclude evidence of directly relevant background context. To the extent that evidence of this kind may also be characterised as evidence of the claimant's reputation, it is admissible because it is directly relevant to the damage which he claims has been caused by the defamatory publication [42].
59 The defendant also relied upon passages at [47] and [48]. Returning to discuss Scott v Sampson and Plato Films Ltd v Speidel, May LJ now said:
That, however, does not prevent a defendant from frankly accepting that there is no proper plea of justification, but seeking to rely in reduction of damages on particulars which Scott v Sampson and Speidel v Plato Films Ltd do not exclude. If this were not so, there is a danger that the jury would be required to assess damages in blinkers, in ignorance of background context directly relevant to the damage which the claimant claims has been caused by the defamatory publication. This is consistent with the sense of what Lord Denning said in Speidel v Plato Films Ltd, where his conclusion was that it was permissible to adduce the evidence in question. Thus, in my view, a defendant is not prevented from taking the sensible course of accepting that the publication means what it says and that it is not on the facts justified, and yet putting in evidence directly relevant facts which in other circumstances might have been ingredients of a defence of justification. It would, I think, be illogical and unfair if this were not so. Evidence in support of a plea of justification which fails is admissible in reduction of damages. But the very same evidence would not be admissible to a sensible defendant who acknowledges that it will not support a plea of justification. What is not permissible is to plead a defence of partial justification which in truth is no defence at all.
Mr Price submits that to allow what he refers to as 'back door' justification would be unfair and give rise to conceptual difficulties and confuse the jury. I do not agree. The jury can be told that the publication is defamatory and that it is not true. There is no defence. They have to assess damages taking account of the evidence they have heard of the context in which the publication came to be made. There is nothing conceptually difficult or confusing about that. I have already indicated that I consider that it would be unfair if the material to which I have referred were not admitted [47] - [48].
60 May LJ went on to conclude in Burstein that the primary judge erred, by excluding some parts of the proposed particulars, which he should have allowed. Nevertheless the residual assessment in Burstein was that rejection of those admissible aspects of the particulars, ought not to have effected or reduced the jury's award, which in that case was £8,000 damages to Mr Burstein (see Burstein at [51]).
61 Subsequent to Burstein there has followed widespread debate, both in England and Australia, over the actual scope of the new principle that decision actually rendered, as regards a permissible receipt of 'directly relevant background context' - being relevant to the damage a claimant says has been caused to his or her reputation by a defamatory publication.
62 Beyond the case authorities already captured at par 13(b) of the defendant's submissions quoted earlier, (indicating a rather cautious reception to a new principle, both in Australia and in the United Kingdom), I now move to discuss three further decisions concerning the Burstein Context Principle.
Turner v News Group Newspapers Ltd
63 First, I note Turner v News Group Newspapers Ltd. Another useful summary of the facts underlying Turner can be found in [82] of the reasons of the Court of Appeal of England and Wales in Warren:
In Turner's case the defamatory allegation was that the claimant had taken his wife to a wife-swapping club and had prevailed on her, against her wishes, to have sexual intercourse with various men. It was held that, in determining compensation, the trial judge had been right to allow the defendant to adduce evidence: (a) that the claimant and his wife had been members of a fetish and swingers' club and had attended 'fetish nights' on four or five occasions; such was relevant to the extent of the injury to his feelings (per Keene LJ, at para 62) and of his alleged embarrassment (per Moses LJ, at para 84); (b) that the claimant had acted - and was widely known to have acted - as his wife's manager or agent in her activity as a professional model in explicit, pornographic poses, including with other women; such was relevant to the extent of the damage to his reputation (per Keene LJ, at para 62) and also to his feelings (per Moses LJ, at para 84); and (c) that the claimant had publicised the breakdown of his marriage in the press, alleging that the wife was a 'Page 3 Thai girl' who had married him for immigration purposes; such was relevant to his alleged distress at the infringement of his privacy: per Keene LJ at para 64, and Moses LJ, at para 84. In that, as Keene LJ in effect accepted, at paras 63 - 64, it is impossible to regard the material at (c) as forming any part of the directly relevant background context of the defamatory material, it seems to us that that part of the decision was not based on the Burstein principle but has to be regarded as specific to the extra strand of the claimant's pleaded case as to the value which he placed upon his privacy and thus to his distress at its infringement.
64 Substantive reasons in Turner were delivered by Keene LJ, who said at [56]:
If evidence is to qualify under the principle spelt out in Burstein's case, it has to be evidence which is so clearly relevant to the subject matter of the libel or to the claimant's reputation or sensitivity in that part of his life that there would be a real risk of the jury assessing damages on a false basis if they were kept in ignorance of the facts to which the evidence relates.
65 In terms of an application of the Burstein Context Principle in Turner, Keene LJ said at [74]:
The injury to his feelings also has to be reflected in the starting figure, and here all three of the matters covered by the ultimate Burstein plea are relevant. In the light of those, the judge found, at para 51, that 'Mr Turner is far less sensitive to intrusive publications about his marital circumstances, or to being portrayed as a "loser", than would be the average claimant'. The judge had the benefit of hearing the claimant give evidence and was in a much better position than this court to assess the extent of the hurt suffered by the claimant from the publication.
66 In reasons agreeing with Keene LJ, Moses LJ in Turner, added these remarks (which strongly resonate here):
The purpose of the approach taken by the Court of Appeal in Burstein's case is clear; it was to ensure that the claimant was properly vindicated and fairly compensated. Exclusion of the facts identified by Sir Christopher Slade, at paras 59 and 60, would not have achieved that result. The problem, as in so many branches of the law, lies in the expressions used to identify and describe the principle deployed to admit that evidence. May LJ referred to 'relevant background context': para 41 or 'background context directly relevant to damage': para 47. Ever forgetful of the need not to read judgments as if they were statutes, the words 'directly relevant background context' have been used as a label to be stuck on by a defendant or ripped off by a claimant. But the words themselves are no substitute for the reasoning of the court in Burstein's case.
The difficulty may lie, I suggest, in the fact that the label, which it has been sought to apply in subsequent cases, does not itself greatly assist in identification. Once detached, it does not, pace Keene LJ at para 56, provide a test, since it assumes a meaning to the words of description it employs. To describe a fact as 'directly relevant' has no meaning without identification of the issue to which it is alleged to be relevant. The word 'context' may itself be misleading. It is accepted that, following Burstein's case, facts may be admitted, notwithstanding that they did not themselves cause or provoke the publication of the defamatory material; that must follow from the decision in Burstein's case itself. Further, there is no requirement that the facts should have been known to the publisher at the time of publication; there is no logic in such a requirement to achieve that which the principle seeks to achieve, a fair measure of damages. In those circumstances to ask whether the facts form part of the context in which the defamatory material was published does not seem to me to be of help to anyone save the lawyers who may gain much by endless debate as to what the label signifies. Nor does it assist to speak of the jury or judge being kept 'in blinkers', unless it is clear what is to be hidden from their eyes [87] - [88]. (my emphasis in bold)
67 Moses LJ's convenient summary of the Burstein Context Principle followed in these useful terms:
A defendant may seek to reduce the damages by adducing evidence which is directly relevant to a claimant's conduct or reputation in the particular sector to which the defamatory material relates for the purpose of mitigating damage [89].
Lower Murray Urban & Rural Water Corporation v Di Masi
68 A second case authority I need to mention is the decision of the Court of Appeal of Victoria in Lower Murray Urban & Rural Water Corporation v Di Masi [2014] VSCA 104; [2014] Aust Tort Reports 82-187 (Warren CJ, Tate & Beach JJA) (delivered 4 June 2014). After dealing with the trial judge's observations concerning mitigation, the Court said:
While mitigation evidence does not necessarily have to meet the relevant sting (as to do so might involve a complete justification), it must be sufficiently relevant to the sting so as to result in, or disclose, a proper basis for some moderation of the damage and consequential damages [115].
Warren v Random House
69 Last, I again mention the further decision of the Court of Appeal of England & Wales, Warren v The Random House Group Ltd.The Court of Appeal upheld a decision by the primary judge, excluding material on the basis of an attempted invocation of the Burstein Context Principle.
70 Most relevantly, I note that the Court of Appeal in Warren said this about the scope of the Burstein Context Principle at [78]:
The decision of this court in Burstein vTimes Newspapers Ltd [2001] 1 WLR 579, cited above, established two important interlocking propositions. (a) In relation to the court's assessment of damages for libel it is open to a defendant to seek to rely upon such facts as fall within the 'directly relevant background context' to the defamatory publication. See in particular the judgment of May LJ, at para 42. (b) It is illogical and undesirable that a defendant can seek to rely upon such facts in relation to such assessment only if he has presented them as part of a substantive defence to liability, in particular within a plea of justification of the publication. He can rely upon them as freestanding matters pleaded as relevant only to the assessment of damages: see in particular the judgment of May LJ, at para 47.
71 I also note the observations in Warren, referring to Turner's case and the limited scope of that decision but, nevertheless, expressing agreement with the observations of Moses LJ in Turner ([87] - [89]) that 'taken on its own, it would give insufficient guidance to judges called upon to apply it', see Warren at[79].
72 At [79], the court in Warren also endorsed observations of Keene LJ in Turner at [56], concerning the Burstein evidence needing to be 'so clearly relevant to the subject matter of the libel or to the claimant's reputation or sensitivity in that part of his life that there would be a real risk of the [court's] assessing damages on a false basis if [it was] kept in ignorance of the facts to which the evidence relates'.
Question for resolution
73 I return to the fundamental issue presenting for resolution. Assessed within the context of an interlocutory strikeout to pleadings application, and the recognised onerous threshold necessarily to be surmounted by an applicant in that context, the question is whether par 15 of the re-amended defence could here be safely assessed at this time as a misconceived and inappropriate invocation of Burstein - by reference to the various subparagraphs of par 15 that are sought to be raised as proposed mitigation evidence, addressed only to mitigation of the plaintiff's damages, if he is successful on liability at trial.
Disposition
74 By my assessment, the defendant's par 15 plea in the re-amended defence must be struck out as failing to disclose any reasonably arguable defence towards an arguable mitigation of the defendant's damages should she be found liable at trial. This is for the following reasons:
1. As we have seen, the attempt by the defendant to invoke some principle of provocation arising out of the decision in Burstein, is misconceived. In my view, there can be found here, no arguable act(s) of provocation by this plaintiff which it would be necessary or just for a jury to consider in evaluating the defendant's alleged utterance and the defamatory imputations said to arise from it.
2. As to, the Burstein Context Principle concerning 'directly relevant background context' as a basis to support par 15, it is appropriate to apply a 'cautious approach' to any invocation of that principle, which for present purposes I take to be in terms as expressed within [41] and [47] of the reasons of May LJ.
3. Attention must be directed to whether any or all of the matters as are identified under par 15 might arguably bear upon an assessment of damages in the plaintiff's favour, if he makes good his case on liability at trial.
4. The question is approached by asking whether such matters arguably can provide any 'directly relevant background context', concerning an assessment of the plaintiff's damages, as a result of the defamatory publication, in particular to damage to his reputation in 'the sector of his life', to which it relates and the 'injury to his feelings'.
5. The relevant sector of the plaintiff's life encompassed within diverse imputations relied upon arising from the utterance (as either false or true innuendos), I would identify as being in the corporate sector, concerning his professional engagement as a director and officer of a public corporation, particularly as an officer who chairs shareholder general meetings of public corporations.
6. The plaintiff's imputations argued for arising from the utterance, if established at trial, challenge the plaintiff in the context of a disregard of a proxy instruction from the defendant, as a shareholder, and instructing how her 375,000 shares were to be voted at a shareholders' meeting of a public corporation. Allied to that charge is the plaintiff's asserted acting in his own self-interest, by effectively disobeying what was binding proxy instruction received from the defendant and an associated disregard and breach of the requirements of the law under the Corporations Act, by disregarding the shareholder's instruction binding him, as a public corporation's meeting chairman.
7. In my view, the various materials now collected under the attempted mitigation of damage plea under par 15, do not arguably address, or engage against damage to the plaintiff's reputation in the (corporate) sector of his life, which is the subject of his imputations.
8. Nor in my view, do the matters presently collected under par 15 properly engage against, or answer questions as to the level of injury to the plaintiff's feelings - upon publication of the utterance and the establishment of one or more of the innuendos he complains of.
9. I would assess the par 15 material sought to be raised by the defendant as largely seeking to rationalise, distract from, or downplay, what is otherwise the fundamental factual error inherent within the utterance by the defendant to Mr Boreham (if proved). The factual error, of course, is over the non-existence of any proxy instruction from her to the plaintiff for a directed vote of 375,000 ordinary fully paid shares in TFS. It seems clear that there never was and could never lawfully have been from the defendant, as the non-legal owner of shares, a proxy instruction concerning 375,000 shares, which were not then in her name legally.
10. The various materials the subject of par 15, are in my view not arguably probative, relevant or contextual in their formulation, by way of being mitigation of damages considerations (see s 38(2) of the Defamation Act), for the judge in proceeding (s 22(3) of the Defamation Act) to assess for this plaintiff, if he succeeds at trial on liability, damages in a rational, proportional (see s 34 of the Defamation Act) or informed way.
11. To the contrary, my assessment is that the gravamen of the par 15 materials as assembled, is that they are essentially diversionary or argumentative. They go towards obscuring the wound to the plaintiff's corporate reputation. They seek to raise what is, in reality, an unrelated side issue - over the argued omission by the plaintiff to take steps to cause a trustee corporation of which he was a director (Domenica) to vote the 375,000 shares that were then held on a bare trust for the defendant at the TFS general meeting, against the plaintiff's nomination for re-election to the board as a director of TFS. But a collateral grievance over Mr Wilson's alleged inaction as a trustee, or a controlling officer of a trustee corporation such as Domenica - is remote and distinct to the reputational injury arising out of his alleged corporate misbehaviour, as would be inflicted under the utterance imputations, if established.
12. A grievance over conduct by omission by a trustee, or the controller of a corporate trustee, is too distant from a more confined innuendo grievance raised by Mr Wilson, concerning his alleged disregarding of an express proxy instruction given to him as a chairman of a publically listed corporation's general meeting of shareholders.
75 In short, at the end, I would assess the defendant's proposed par 15 mitigation materials as potentially injecting into the trial for no good reason facts amounting to something of a diversionary 'smokescreen'. An award of damages and the evaluation of any mitigation issues surrounding damages are matters (if they arise) for the judicial officer (s 22(3) of the Defamation Act). Even so, the parameters of this trial ought not be unnecessarily expanded by a receipt of the par 15 materials.
76 By my assessment, it is logistically feasible and in the interests of sensible case management, not to mention the overall administration of justice, for these issues to be determined now, prior to them possibly erupting as unnecessary distractions during the course of the trial. It is both convenient and appropriate at this interlocutory juncture, notwithstanding the high interlocutory threshold the applicant must surmount, to conduct the present evaluation of par 15.
77 Having undertaken a close evaluation of the assembled materials under par 15, my view is that they are not legitimately admissible as any proper invocation of any aspect of Burstein.
78 Hence par 15 should be struck out, as failing to disclose a reasonably arguable defence (in a sense of it not arguably raising matters that are legitimate to admit into evidence at the trial, in a context of assessing arguments upon issues bearing upon some aspect of a degree of mitigation in the level of damages the plaintiff would be entitled to receive at trial, were he to be otherwise successful upon issues of liability).
79 The parties should now confer as to orders giving effect to these reasons, after which the plaintiff should, within 14 days of the publication of these reasons, file with the court a minute of proposed orders, ideally agreed between the parties. I will resolve any residual disputation on the papers.
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