Arman v Nationwide News Pty Limited

Application to strike out particulars of the Reply: paragraph 2

1. In paragraph 2 of the Reply, the plaintiff sets out, in relation to the issue of malice that "the defence of consent/leave & licence/volenti non fit injuria is not known to law and/or are not applicable in this or other defamation actions".
2. I note two preliminary matters. First, consent is a defence of "absolute immunity" to the words for which consent is express or implied (Professor R. E. Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (formerly The Law of Defamation in Canada) (Carswell) at [11-1]). This means the defendant's motivation is irrelevant (at [11-17]). There is no need for a challenge to this defence in a Reply, so there is really no need for paragraph 2 at all. Second, the mere pleading of a defence to an action for defamation (including justification) is not a basis for malice, which relates to the state of mind at the time of publication, not the defences later crafted by counsel in the complex pleadings which are so common in defamation actions.
3. What the plaintiff appears to be doing is to use the Reply particulars as a collateral challenge to the defence of consent. When asked if he proposed to seek the striking out of this defence, Mr Evatt said that this was a matter for the trial. He opposed the striking out of paragraph 2 of the Reply on that basis. Accordingly, it is necessary for me to hear argument as to the merits of Mr Evatt's submission that the defence of consent is unknown to law and impermissibly rolled up. Not only does this enable the defendant to seek the striking out of this paragraph, but it puts the relevant principles before the trial judge in the event that Mr Evatt's arguments are raised again at the trial.

Consent/volenti non fit injuria/leave and licence

1. The defence of consent sets out these three bases for the defence of consent as alternatives. Mr Evatt submits that "the defence of consent raises different issues to the defence of volenti non fit injuria although volenti is akin to leave and licence" (written submissions, paragraph 2).
2. This is not correct. The correct name for the defence is the defence of consent, although it had been referred to as "leave and licence" in some earlier decisions. The defence is developed out of the doctrine of volenti non fit injuria, which is a doctrine not restricted to defamation. I summarise the cases explaining these issues as follows: 1. Consent and volenti non fit injuria: Professor Brown states that the defence of consent in defamation is "premised upon the doctrine of volenti non fit injuria", not that they are separate defences, or that the doctrine of volenti non fit injuria is in fact a defence. The development of the defence of consent from the more general doctrine of volenti non fit injuria is explained by Burchett J in In Austen v Ansett Transport Industries (Operations) Pty Ltd [1993] FCA 403, with reference to Slessor LJ, in Chapman v Lord Ellesmere [1932] 2 KB 431. It is consent, not volenti, which is a defence to defamation actions; the volenti principles in fact were also applied to Mr Austen's alternative claim for negligence. The plea of volenti may, however, remain as part of the defence pleaded. 2. Consent and leave and licence: In Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 525, Dixon J stated that the defence of consent is also known as "leave and licence". However, the concept of "leave and licence" is one of general import in relation to intentional torts, which include trespass: Plenty v Dillon (1991) 171 CLR 635; White v Johnston [2015] NSWCA 18. As part of the matter complained of includes photographs and a film of the plaintiff, there is no reason why "leave and licence" may not also be pleaded.
3. Mr Evatt's claim that the defence of consent is unknown to the law is nonsensical, as its existence is widely acknowledged in case law, commentary and legal texts. In Chapter 11 of his authoritative text on defamation in all common law jurisdictions, Professor Brown defines consent as a defence to "any defamatory publication which the plaintiff personally sets into use and is repeated by others" (at [11-4] fn 14, a quotation taken from Fleming, Law of Torts, 9th ed., 1998, at pp 626 - 7).
4. Professor Brown notes the following features of the defence of consent: 1. The defence is narrowly construed, and thus consent must be proved for each publication separately (at [11-3], fn 15). (Examples of the narrow construction of this defence are set out in Halsbury's Laws of Australia (LexisNexis) at [145-2210].) For example, a plaintiff who merely invites a discussion of his or her own conduct does not invite the publication of defamatory statements concerning that conduct (Loveday v Sun Newspapers Ltd at 525; see also Church of Scientology Inc v Anderson [1980] WAR 71 at 81 per Brinsden J), while a plaintiff who announces "I am a terrorist" on social media may invite republication worldwide. Whether there is consent is an issue for the trial, and is not a basis for summary dismissal of the defence, other than in the most obvious of cases (Frew v John Fairfax Publications Pty Ltd [2004] VSC 311: sending a book to a newspaper for review is not a consent to the contents of that review). 2. The defence applies to false statements, and not merely to true ones (Professor Brown at [11-3]). What needs to be proved is what the plaintiff said and the facts and matters relied upon to establish consent, such as (in this case) posing for photographs and making the statements attributed to her. 3. There is no restriction to the extent of publication. Where it is reasonable for a person to believe that the plaintiff has put no constraints on the publication (such as publication to the world at large in a social media context, or to readers of a newspaper if the statements are made to a journalist), the defendant can publish it to anyone (Professor Brown at [11-4]).
5. The defence of consent has been held to arise in the following circumstances: 1. Where there have been requests by the plaintiff to repeat the libel, or where consent to do so can be inferred from the circumstances. However, in Howe v Burden [2004] EWHC 170 Eady J refused summary judgment where the publications were invited by the plaintiff so that they could be surreptitiously recorded, describing the law in this area as "uncertain or in a state of development" (at [29]). 2. Where the defendant is repeating the plaintiff's actual words (Moore v News of the World [1972] 1 QB 441) or has allegedly taken photographs of the plaintiff with consent (Ettinghausen v Australian Consolidated Press Ltd (1993) A Def R 51-065). Social media is a fertile source for this kind of defence, as the "like" and "retweet" buttons permit the precise nature of the plaintiff's words to be retransmitted; many news media sources simply copy those messages into articles without seeking permission. 3. Consent which is implied by agreeing to provide information or to raise issues requiring a reply, in a non-judicial context (Chapman v Lord Ellesmere (Jockey Club inquiry); Dudzinski v Kellow [1999] FCA 390; Dudzinski v Kellow [1999] FCA 1264 (university conciliation process); Friend v Civil Aviation Authority [1998] IRLR 253 (aviation inquiry)) or by signing an authority to enable production of material (Austen v Ansett Transport Industries (Operations) Pty Ltd).
6. The facts of the present case would fall into the second of these categories, in that the plaintiff is asserted to be the source of the material giving rise to the imputations.

The defence of consent in Australian defamation law

1. As well as those referred to above, the defence has been considered in a number of judgments, including Abbott v National Coursing Association of SA [1941] SASR 140 (statements in a meeting) and Fowler v State of New South Wales (Supreme Court of New South Wales, Levine J, 21 October 1994) (application for summary dismissal on basis of hopelessness because of s 13 and consent defences refused on General Steel grounds (General Steel Industry Inc v Commissioner for Railways (1964) 112 CLR 125)).
2. Three recent decisions are of particular relevance. The first of these is Austen v Ansett Transport Industries (Operations) Pty Ltd, where the plaintiff signed a medical form that authorised one party to supply the plaintiff's medical history to another party. Burchett J held that "consent is a complete answer to the cause of action in defamation founded on those matters" (at [44]) and found for the defendant not only in his defamation claim but also on the claim in the alternative for breach of statutory duty. His Honour added that the availability of consent as a bar to a recovery for defamation under the general principle of volenti non fit injuria had been noted in Jones v. Brooks (1974) 2 WWR 729 at 735 in Canada and in Teichner v. Bellan (1959) 181 NYS 2nd 842 in the United States.
3. Secondly, the defence was again successful in Dudzinski v Kellow, both on a summary dismissal application and on appeal. At first instance, Drummond J referred to the defence of consent (at [40]) as a basis for summary dismissal for a publication in reply to a complaints process initiated by the plaintiff. His Honour then noted that "even if consent is not an excuse" there was also a good defence under s 16(1)(f) Defamation Act 1889 (Qld) unless the publication was not made in good faith, and dismissed the claim on that alternative basis as well.
4. Drummond J set out his reasons for summary dismissal on both these grounds as follows: "[40] It is a defence at common law to the publication of defamatory matter that the plaintiff, in an unequivocal way, expressly or impliedly consented to the particular publication: Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 369; Abbott v National Coursing Association of South Australia [1941] SASR 140 at 144. In my opinion, even if consent is not an excuse for the publication of defamatory matter for the purposes of s 6 of the Defamation Act, it will constitute a good defence in circumstances like the present under s 16(1)(f) of that Act, unless the publication was not made in good faith. [41] The applicant has the burden of proving absence of good faith: s 17 of the Defamation Act. He alleges that Chu's comments were malicious. He has pleaded absence of good faith prematurely: see Bates v Queensland Newspapers Pty Ltd [1996] 1 Qd R 13. But since he has pleaded it, it is open to the court, in the context of an application under O 20 r 2(1)(a), to see what is the case he intends to make out on absence of good faith for Chu's publication. [42] He has pleaded no facts sufficient to show that he may be able to make out his allegation of malice. He is obliged to do that: Mann v Board of Health of the Australian Capital Territory (1996) 67 FCR 383 at 392. There is no suggestion by the applicant that Chu's comments, of which he complains, were more extensive or were published more widely than the applicant himself required by invoking the university appeal procedures and by complaining about her determination to Hulsman as the relevant subject convenor. As I have mentioned, the applicant has had more than ample opportunity to say everything he wishes to say in support of his various complaints, including the complaints made in this part of the pleading that Chu defamed him on two occasions. [43] The defamation complaints against Chu are so unlikely to succeed that they should be struck out now."
5. Leave to appeal was refused: Dudzinski v Kellow [1999] FCA 1264. While French J (as the Chief Justice then was) does not refer to the consent findings specifically, his Honour does say (at [11] - [14] and [16]) that the findings of the trial judge were correct, as was his approach to the summary judgment issue.
6. In Al-Shennag v Statewide Roads Pty Ltd [2010] NSWSC 1412, an engineer employed by Bankstown City Council placed conditions on three development applications. The Council commissioned a report that found the plaintiff made a series of mistakes and errors, underlined by poor engineering judgment. The plaintiff sued over the report. The defendant raised the defence of consent and the plaintiff applied to strike out that defence.
7. McCallum J dismissed the application, stating "it is a defence to the tort of defamation that the plaintiff consented to the publication" (at [26]), and citing Monson v Tussauds Ltd [1894] 1 QB 671, and this "is an issue which must plainly go to trial in light of the principles to which I have referred" (at [33]). The proceedings were later summarily dismissed on unrelated grounds.
8. When confronted with this mountain of authority, Mr Evatt's alternative argument was that the defence was restricted to occasions where the matter complained of had been actually shown to the plaintiff and the plaintiff had given express approval to publish.
9. In none of these decisions was the defendant required to prove that the matter complained of had been shown to the plaintiff and approved in this fashion. To the contrary, as Ms Mullins pointed out in her submissions in reply, in nearly all of the cases the plaintiff had given consent before the publication was made, whether expressly or impliedly.
10. It is the "setting into use" (to use Professor Brown's term) of the plaintiff's words or actions that is the gist of the defence. Whether a teenager announces on social media "I am a terrorist", or a married man informs attractive women at a party that he is getting a divorce, the "setting into use" by others of the plaintiff's own defamatory statement about himself/herself is sufficient. The circumstances in which the statement sued upon is repeated do not require express consent from the plaintiff to either the use of the words or to the infliction of subsequent harm.

The plaintiff was a minor at the time of the consent

1. Mr Evatt's final argument was that the plaintiff was incapable of giving consent because she was a minor.
2. This misconceives the nature of the giving of consent as some sort of contractual obligation when the claim is one of action on the case, where a plaintiff enjoys no such absolution from liability. Ms Mullins drew my attention to Department of Health and Community Services (NT) v JWB and SMB (Marion's case) (1992) 175 CLR 218 which refers in turn to Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, as to the entitlement of a minor to give consent to medical treatment which might, in the absence of that consent, amount to assault.

Conclusions concerning paragraph 2

1. The issues which should be addressed in a Reply are issues of malice. It is settled law that the pleading of a defence cannot, without more, amount to evidence of malice, and on this ground alone paragraph 2 of the Reply should be struck out. That is all the more the case where no application has been made to strike out the defence itself.
2. The hopelessness of this particular of malice is one of the reasons for my ordering verification of the amended Reply.

Paragraph 3 of the Reply - honest opinion

1. In paragraph 3 of the Reply, the plaintiff stated that the opinion was not honestly held by the defendant. Section 31(4)(b) Defamation Act 2005 (NSW) requires the plaintiff to prove that the defendant did not believe that the opinion was honestly held by the employee. The plaintiff has now amended this portion of the Reply to encapsulate that requirement.
2. Ms Mullins submitted that paragraphs 3(b) and 3(d) of the Reply should be struck out. Paragraph 3(b) was withdrawn during the argument. Its contents were of concern to me, not only because of the opprobrious comments about the journalist who wrote the matter complained of, but because it also referred disparagingly to unrelated proceedings in this court which have not yet been concluded. If paragraph 3(b) had not been withdrawn, it would have been struck out.
3. Paragraph 3(d) is of the "intent to injure" category, which is impermissible unless the matters relied upon are specified, so that the plaintiff can be restricted at trial to the conduct so specified: Harrigan v Jones [2000] NSWSC 2000 at [35] - [45] per Levine J; Waterhouse v Mirror Newspapers Ltd (1985) 1 NSWLR 81 at 84 per Hunt J. This paragraph will be struck out for the same reasons as those given by Levine J and Hunt J on the basis that those particulars are not given. As the conduct in question appears to be the same conduct as that set out in paragraph 3(a) and 3(c), no leave to replead is needed.

Paragraph 4 of the Reply

1. The defendant does not object to paragraphs 4(a) or 4(b).
2. Paragraphs 4(c) - 4(f) are objected to on the same bases as paragraph 3(d) above.
3. While a plaintiff may rely upon the unsuccessful pleading of a defence of justification as a matter going to aggravated damages, this does not apply to malice, this being relevant to the occasion of publication and not to the pleading of a defence at the trial.
4. The reference to "false pleading" of the defence of justification (paragraph 4(c)) is of concern. Although Mr Evatt attempted to explain this meant only that the defence was weak or would fail, that is not what this phrase connotes.
5. If there is to be a claim at the trial that the plaintiff was surreptitiously photographed and filmed and that the words she and her companion are attributed as having spoken were falsified, this must be specified in detail. This is conduct of a criminal nature and such accusations, if made, should be verified. I note the observations of Hunt J in Waterhouse v Mirror Newspapers Ltd at 83 as to the pleading, in the Reply, of allegations of misconduct in the nature of fraud. In the absence of precise particularisation of the kind Hunt J stated was necessary, this paragraph is struck out.
6. Paragraph 4(d) refers to conduct not the subject of imputations. I note Mr Evatt foreshadowed an application for leave to amend the statement of claim. Until that time, and unless such an application is successful, this paragraph will be struck out.
7. Paragraph 4(e) is strongly reminiscent of the pleading struck out by Levine J in Harrigan v Jones at [41], and will be struck out for the same reasons.
8. Paragraph 4(f) is similarly strongly reminiscent of the pleading struck out by Levine J in Harrigan v Jones at [36], and will be struck out for the same reasons.
9. The defendant's objection to paragraph 4(g) ("Unfair and misleading headlines and photographs") was to the reference to "photographs" only, in that the manner in which those photographs were unfair and misleading was unexplained. In response to my inquiry as to whether the allegation was that the defendant had altered the photographs or told the plaintiff to pose in an unflattering way, Mr Evatt repeated his earlier submission that the plaintiff had been photographed and filmed without her permission or knowledge. It would appear that, at trial, the plaintiff will challenge whether she was in fact interviewed.
10. These are serious allegations. I am anxious that these claims (which, having seen the photographs and film which form part of the matters complained of, seem difficult to maintain) should not overshadow the merits of the parties' respective cases at trial. The best way forward, in my view, is for the plaintiff to verify the Amended Reply, so as to ensure that suitable consideration has been given to the consequences of such allegations.

Costs

1. Mr Evatt did not seek to be heard in relation to an order that the plaintiff pay the defendant's costs.
2. A timetable for these proceedings has been set down which should ensure that these proceedings, as well as the other two proceedings brought by the plaintiff, will be ready to take a date for hearing when they are next before the court for directions.

Orders 1. Strike out paragraphs 2, 3(d) and 4(c) to 4(f) of the Reply. 2. Note paragraph 3(b) of the Reply is withdrawn but if pressed would have been struck out. 3. Grant leave to the plaintiff to rely upon a particular "unfair and misleading headlines" in paragraph 4(g) of the Reply but strike out the words "and photographs". 4. The plaintiff may file an Amended Reply in 14 days, deleting the passages struck out and withdrawn, amending the opening sentence of paragraph 3 and containing any particular of malice in relation to any asserted refusal or other failure to give permission for the taking of photographs and/or film, such Amended Reply to be verified by the plaintiff. 5. Parties to serve categories of documents for discovery on or before 6 July 2017. 6. Parties to serve verified Lists of Documents on or before 27 July 2017. 7. Parties to administer interrogatories on or before 17 August 2017. 8. Parties to serve verified answers to interrogatories on or before 31 August 2017. 9. Plaintiff pay defendant's costs. 10. Proceedings listed for further directions in the Defamation List at 9:00am on 7 September 2017.

Amendments 22 June 2017 - Typographical error in headnote DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2017