Branch v Papyrus Australia Ltd

Background 2 In order to identify the publications which are the subject of the applicant's claims it is necessary to explain some of the background. In doing so, I shall summarise the allegations that are made in the amended statement of claim. 3 The first respondent (Papyrus) is a public company that is listed on the ASX. The second to fifth respondents are directors of Papyrus, and the third respondent (Mr Rigano) is also the company secretary. The applicant alleges that he was engaged by Papyrus as its chief executive officer and managing director commencing 1 October 2017, and that he continued in those positions until 24 November 2017. The applicant alleges that the commencement and termination of his engagement was the subject of announcements by Papyrus on 3 October, 6 October, 26 October and 24 November 2017. 4 The applicant alleges that he has been defamed as a result of the publication by the respondents of three documents - (1) the annual financial report for Papyrus for the year ending 30 June 2018; (2) the annual financial accounts for Papyrus for the year ending 30 June 2018; and (3) an email from the third respondent, Mr Rigano, to Mr Chris Dobbs of the ASX sent on 26 November 2018. 5 The 2018 annual report and annual accounts of Papyrus are defined in the amended statement of claim as "the Material". The applicant alleges that the Material was published to ASIC, and to the ASX, and was posted on the websites of ASIC, the ASX, and Papyrus, and was published in hard copy to shareholders and other parties. The applicant further alleges that the Material was published by mass media websites, such as HotCopper and Bloomberg. 6 In general terms, the applicant's claim is that the annual report and annual accounts of Papyrus for the year ending 30 June 2018 do not make any reference to the applicant's term as chief executive officer and managing director of Papyrus during the reporting period as required by s 300(1) and s 300A of the Corporations Act 2001 (Cth), and the Listing Rules of the ASX. The applicant alleges that, by this omission, he was defamed by those publications. 7 Following the publication by Papyrus of its annual report, the applicant made a complaint to the ASX. The substance of the complaint was that the annual report of Papyrus contained deliberate and material omissions that should be corrected. Those omissions were alleged to be - (1) the omission of the applicant from the names and details of the company's directors in office during the relevant financial year; (2) the omission to record details of the applicant's remuneration; and (3) the omission to report that the applicant had attended board meetings during the reporting period. The above matters are defined in paragraph 2.10 of the amended statement of claim as "Omissions". 8 The applicant alleges that following the making of that complaint, Mr Rigano sent the email of 26 November 2018 to Mr Dobbs of the ASX in which he stated - Hi Chris, Thank you for your email I am sorry for responding so late. To clarify the situation, Branch never actually commenced as MD of PPY. He never arrived in Adelaide to meet the Board and to receive his mandate to commence his appointment and duties as anticipated by the Board when it made the Announcement dated 1 October 2017. Branch acted unilaterally from the time we announced his appointment on 1 October 2017 (which was in anticipation of his commencement of duties in Adelaide on 3 October 2017) until 24 November 2017 when we accepted his second resignation. The fact that he resigned and the Board accepted his resignation, and the subsequent notification to the market was simply a formality. If you wish to discuss please call me in the morning. For and on behalf of the board. 9 The email of 28 November 2018 is defined in the amended statement of claim as the "ASX Publication".

The amended statement of claim 10 The applicant is self-represented, and has prepared his own pleadings. By his amended statement of claim, the applicant has attempted to grapple with pleading extrinsic facts, true innuendos, and aggravated damages. However, it must be said that the applicant's amended statement of claim is unnecessarily long, and is confusing. An example of the confusing state of the amended statement of claim is the use of the defined term "Extrinsic Facts". By paragraph 2.14.1 of the amended statement of claim, which is a particular of the allegation of publication of the ASX Publication, the applicant alleges as follows - 2.14.1. The ASX publication was read and understood by staff of the ASX and forwarded to the Applicant by Chris Dobbs, a staff member of the ASX who had knowledge that the Applicant was intending to sue the Respondents for Breach of Contract (Extrinsic Facts); 11 The term "Extrinsic Facts" is then deployed in paragraphs 2.16 (in relation to another publication), in paragraph 12.4 under the heading "Identification", in paragraph 13 (under the heading "Damages"), in paragraph 2.14.1 in relation to the ASX Publication (but not in a way that is linked to any imputations), and in paragraph 15.5.1 in support of the "natural innuendo intended in the ASX Publication" (which is not identified).

The Material 12 In relation to the Material, the applicant appears to allege imputations in two sections of the amended statement of claim. First, in paragraph 12.5 the applicant alleges - Imputations 12.5. An ordinary reasonable person would consider the Applicant to be lying when discussing his tenure at Papyrus when it is not supported by the directors report in the Material. 12.5.1. The Omissions impute: 12.5.1.1. The Applicant is a liar; 12.5.1.2. Any claim by the Applicant to have been the CEO and Managing Director of the First Respondent is a lie; 12.5.1.3. Any claims by the Applicants' [sic] as to his achievements while CEO and Managing Director of the First Respondent are lies; 12.5.1.4. Other claims in the Applicant's CV are false; 13 Second, immediately following the section of the amended statement of claim headed "Imputations" is a further section under the heading "Defamation" - Defamation 12.6. The Material makes false statements of and about the Applicant through True Innuendo; PARTICULARS The deliberate and persistent Omission of information by the Respondents that would ordinarily support the Applicant's History and Reputation and which absence damages them by claiming the Applicant was not the CEO and Managing Director of the First Respondent, imputing he is a liar, are defamatory as they clearly reduce his Reputation to an ordinary reasonable person. 12.7. An ordinary reasonable person would assume the Omissions in the Material, given the authority of the Board and the ASX and ASIC in publishing the Material, do make the Applicant's claims to the contrary appear false. 12.8. Aside from the ordinary reasonable reader of the Material, the Reputation of the Applicant is also reduced when the Material is read and understood in the special meaning by specialist classes such as: 12.8.1 The joint venture partners negotiated with during the Applicant's tenure at Papyrus (JV Partners), each of which are identified in the Contract; 12.8.2 The shareholders and stakeholders of Papyrus; as identified in the share register of the First Respondent 12.8.3 The ASX, ASIC and their staff and users of their services who have been party to the communication trail between the Applicant and the Respondents; 12.8.4 The parties the Applicant negotiates new engagements with and which are identified in Paragraphs 17 to 27; 12.8.5 Sophisticated investors; and 12.8.6 Colleagues of the Applicant. 12.8.7 The defamation harms the Applicant's Reputation causing him damages and losses by being shunned, avoided or ridiculed. 14 Under the heading "Damages" the applicant alleges the following - Damages 13. The deliberate, selective and persistent Omissions from the Material use natural innuendo and True Innuendo intended to ensure that the reader whether the general reader or the specialist reader with knowledge of the Extrinsic Facts of the Applicant's relationship with the Respondents is suspicious of the truth of or rejects the Applicant's claims to the contrary;

The ASX Publication 15 In relation to the email of 26 November 2018, the applicant alleges the following imputations - Imputations 15.2. An ordinary reasonable person, that is a person "of average intelligence, who is neither perverse, morbid or suspicious of mind, nor avid for scandal, but who is also not usually naïve, who engages in a degree of loose thinking, who can and does read between the lines, and who has a capacity for implication that is greater than that of a lawyer," would consider the Applicant to be lying when discussing his tenure at Papyrus which is not supported by the contrasting statements in the ASX Publication. 15.2.1. The Falsehoods impute: 15.2.1.1. That the Applicant lied to the ASX about commencing as the MD of Papyrus, imputing that the Applicant is a liar; 15.2.1.2. That the Applicant failed to go to Adelaide as directed, imputing the Applicant is irresponsible and refuses to carry out instructions; 15.2.1.3. That the Applicant avoided receiving his mandate to commence his MD duties with Papyrus, implying the Applicant refused to obey instructions and to act as instructed; 15.2.1.4 That the Applicant refused to follow directions or instructions, imputing the Applicant acted in a self grandiose manner; 15.2.1.5. That the Applicant's work with Papyrus was trivial and valueless, imputing that the Applicant was incapable of performing any work of meaning for Papyrus. 15.2.1.6. The Applicant failed in his duties. 15.2.1.7. That the Applicant's performance was such that he was forced to resign imputing the Applicant is at fault and responsible for his resignation; 15.2.1.8. Since the imputation is that the Applicant did not work for Papyrus or did not work as the Applicant claims, and is lying in his claims to this, the imputation is that if the Applicant is a liar about one job then it brings into question the rest of the Applicant's career History. An ordinary reasonable person would question that the Applicant could possibly have done the other things in his CV, and therefore shun or avoid or ridicule the Applicant. 15.3 The imputations clearly reduce the Applicant's reputation causing him to be shunned, avoided or ridiculed. 16 The applicant then alleges the following under the heading "Defamation" - Defamation 15.4. The Applicant's Reputation was reduced by the Falsehoods in the ASX Publication in the literal sense and the True Innuendo Sense; 15.4.1. An ordinary reasonable person would take each false statement in the ASX Publication to have their natural and ordinary meaning, making the Applicant out to be a liar and incompetent at their job. Such a person would shun or avoid or ridicule the Applicant who is therefore defamed. 15.5. The staff at the ASX who received the Applicant's ASX Complaint and read the ASX Publication are also knowledgeable about the Extrinsic Fact that there is a dispute between the Applicant and the Respondents; 15.5.1. Staff at the ASX would believe the natural innuendo intended in the ASX Publication and therefore shun or avoid or hold the Applicant up to ridicule. 17 Under the heading "The Aggravated Damages" the applicant alleges that the publications by the respondents have caused prospective new clients of the applicant to shun and avoid him. The applicant then refers to dealings with three corporations and alleges lost opportunities to undertake work for those corporations. 18 The relief sought by the applicant includes public corrections and apologies, aggravated damages, and costs. No claim is made in terms for general compensatory damages, but I would regard the applicant's general claim for relief as embracing a claim for damages for both economic and non-economic loss.

The respondents' submissions 19 The respondents make a number of complaints about the applicant's amended statement of claim, which may be summarised as follows -

The Material (1) In its natural and ordinary meaning, the Material was not capable of being defamatory of the applicant, because the Material did not identify the applicant, and in any event it was not capable of conveying any imputation that was injurious of the applicant's reputation. (2) To the extent that the applicant might be attempting to plead a true innuendo arising from the publication of the Material, the applicant has not pleaded any extrinsic facts within the knowledge of those persons to whom the Material is alleged to have been published that would lead the ordinary reasonable reader with knowledge of those extrinsic facts to consider the Material to be defamatory of the applicant. (3) The formulation of the applicant's imputations in relation to the publication of the Material is embarrassing as to form, in that the imputations are imprecise and liable to create confusion and uncertainty. (4) In relation to the Material, the applicant's imputations were not capable of being conveyed.

The ASX Publication (5) In its natural and ordinary meaning, the ASX Publication was not capable of being defamatory of the applicant. (6) The applicant has not alleged that any person to whom the ASX Publication was published had knowledge of extrinsic facts that would render it defamatory of him.

The relief sought by the applicant (7) The applicant's claims for corrections and apologies are not tenable. (8) The applicant's claim for damages in the sum of $750,000 should be struck out as the necessary material facts to support it have not been alleged, and to the extent that it is a claim for general damages, it exceeds the statutory cap.

Sundry matters (9) The respondents complain that the applicant does not plead where the matters were published.

The applicant's submissions 20 The applicant filed written submissions, and also addressed submissions to the Court at the hearing of the interlocutory application. 21 By his submissions at the hearing, the applicant stated that he did not claim that the Material was defamatory of him in its natural and ordinary meaning, but in relation to those publications he relied only upon true innuendos. In written submissions, the applicant claimed that the ASX Publication was defamatory of him both in its natural sense, and by way of true innuendo. 22 In relation to the Material, the applicant submitted that the extrinsic facts were identified in paragraph 12.8 of the amended statement of claim (see [13] above), and were that the various classes of readers referred to were involved with the applicant in their respective ways when he presented to them as the managing director of Papyrus, and that engagement would subsequently appear to be false to them because of the statements in the Material. 23 In relation to the ASX Publication, the applicant submitted that it defamed him in its natural and ordinary meaning by (inter alia) imputing that he was a liar, and also that it conveyed a true innuendo to a reader with knowledge of extrinsic facts. The applicant submitted that the relevant extrinsic facts were alleged in paragraph 2.14.1 of the amended statement of claim (see [10] above), namely that the applicant was intending to sue the respondents for breach of contract. 24 The applicant submitted that the claims for damages that he makes include claims for economic loss, including a general downturn in his business: see Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674; Andrews v John Fairfax Ltd [1980] 2 NSWLR 225, and that insofar as a claim for economic loss was made, it was not subject to the statutory cap in s 35 of the Defamation Act 2005 (NSW) or corresponding provisions.

Overview 25 In Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [15]-[19] the Full Court explained that general principles of pleading invariably require that a respondent to a defamation proceeding is entitled to know what defamatory imputations are relied upon by an applicant. That is because an applicant's case at trial will be shaped by the meanings that are alleged, and because the availability of many defences available to a respondent, such as truth and comment, are defences of confession and avoidance which fall to be considered after the question of meaning is determined. The pleading of meanings is therefore a significant and important component of an applicant's case. 26 There are a number of difficulties with the applicant's amended statement of claim. Amongst other things, these difficulties result from a failure to differentiate clearly between the pleading of imputations that are alleged to arise upon the natural and ordinary meaning of the words, and those imputations that are alleged to arise as true innuendos. In relation to the use of the term "True Innuendo" in the pleading, it is not always clear on the face of the pleading what extrinsic facts are relied upon to support the true innuendos, and it is not always clear what persons are alleged to have had knowledge of those extrinsic facts. In relation to the publication of the Material, the applicant has not identified any persons to whom the publications are alleged to have been made who had knowledge of relevant extrinsic facts. Further, the extrinsic facts on which the applicant would seek to rely are not clearly alleged. A further issue that arises is that it would appear that the applicant might be seeking to allege that imputations were conveyed when the applicant, subsequent to the publication of the Material, discussed with third parties his tenure at Papyrus: see paragraph 12.5 of the amended statement of claim set out at [12] above. In respect of that allegation, there is no plea that the Material was published to those persons.

Principles relating to summary judgment and striking out pleadings 27 The principles relating to summary judgment are well-known. The Court's powers under s 31A of the Federal Court Act 1976 (Cth) and under r 26.01(1) of the Federal Court Rules 2011 (Cth) to dismiss a proceeding summarily on the ground that the applicant has no reasonable prospect of successfully prosecuting the proceeding, or part of the proceeding, should not be exercised lightly: Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 at [23]; Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [60]. Where the issue in contention is whether imputations alleged by an applicant to support a defamation claim should be the subject of summary determination, the principles were stated by the High Court in Trkulja at [30]-[32] as follows - [30] The question of whether words or images complained of are capable of conveying a pleaded defamatory imputation is a question of law which permits of only one correct answer. It is, however, a question about which reasonable minds may sometimes differ, and, consequently, it is only ever with great caution that a defamation pleading should be disallowed as incapable of bearing a defamatory imputation. The potential for difference about the capacity of matters to convey different meanings is an equally strong reason for declining to set aside a proceeding on the basis that an impugned publication is incapable of bearing the defamatory imputation alleged. And it is to be remembered that on an application for summary dismissal such as this, the plaintiff's case as to the capacity of the publications to defame is to be taken at its highest. [31] The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd, "[s]ome are unusually suspicious and some are unusually naive". So also are some unusually well-educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole. [32] As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc, that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to "read between the lines in the light of his general knowledge and experience of worldly affairs", but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti, "[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject". [Footnotes and citations omitted] 28 For the purposes of determining at trial the meaning of words that are alleged to convey defamatory imputations, the trier of fact applies an objective standard. The Court must determine the meaning which the words conveyed to an audience or readership composed of ordinary decent persons, being reasonable people of ordinary intelligence, experience and education who bring to the question their general knowledge and experience of worldly affairs: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460 at [4]-[6], [39]-[40]; Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31 at [54]. When a Court considers the legal question of the capacity of words to convey pleaded imputations, the capacity issue is also to be determined by reference to that objective standard, and not by reference to whether the Court considers the imputations are arguably conveyed: see, Trkulja at [52]. 29 The Court's power under r 16.21 of the Federal Court Rules to strike out pleadings attracts different considerations, because the power to strike out a pleading is not confined to a case where no reasonable cause of action is disclosed. The circumstances in which pleadings may be struck out include if the pleadings contain frivolous or vexatious material, if they are evasive or ambiguous, and if they are likely to cause prejudice, embarrassment or delay in the proceeding. The function of pleadings include the formulation of issues for trial so that the opposing party has fair notice of the case that is to be met, so that the Court may make rulings on evidence, and so as to identify issues for determination at trial by the Court. The proper function of a pleading will be impaired if it contains allegations that are frivolous, vexatious, evasive, ambiguous, or if the pleadings are likely to cause prejudice, embarrassment or delay in the proceeding. The resolution of disputes involving these types of issues will usually involve considerations of practical justice in the circumstances of the particular case: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at p 138 (Gleeson CJ).

Publication 30 An applicant in a defamation proceeding must allege and prove publication of the matter that is alleged to be defamatory. Each publication gives rise to a separate cause of action, but under the uniform Defamation Acts there is only one cause of action for each publication, even if more than one imputation is conveyed: see, for example, Defamation Act 2005 (NSW), s 8. 31 For the purposes of the tort of defamation, publication requires that a defamatory matter be comprehended by a person other than the person about whom the publication is made: see, Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575 at [26] (Gleeson CJ, McHugh, Gummow and Hayne JJ). This does not mean that the matter must be comprehended in the sense of the defamatory imputations alleged by an applicant in order for the publication to be actionable: as I have mentioned at [28] above, the question whether a defamatory imputation is conveyed is determined objectively: see also, Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at p 37. 32 The mere dissemination of defamatory matter does not, by itself, amount to publication. However, in many cases proof of dissemination will give rise to an inference of publication. The publication of a mainstream newspaper is an instance where the distribution of the newspaper readily gives rise to an inference of publication. On the other hand, in the case of confined dissemination, it may be possible to rebut an inference of publication by proving that the publication was not read, as Browne v Dunn (1893) 6 R 67 at p 74 illustrates. 33 Where an applicant relies, not upon the natural and ordinary meaning of the words, but upon a special meaning (a true innuendo) that arises from knowledge of facts that are extrinsic to the matter, proof of publication requires proof that the matter was published to someone with knowledge of those extrinsic facts: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at p 89 (Jordan CJ). Depending upon the type of publication, and the nature of the extrinsic facts that are alleged, an applicant may be required to plead the identity of those persons with knowledge of the extrinsic facts to whom the applicant alleges that the matter was published: Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651; Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 at p 825 and p 828-830; Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at p 191-192; Hughes v Mirror Newspapers Limited [1985] 3 NSWLR 504 at p 506-507; Gumina v Williams (No 1) (1990) 3 WAR 342 at p 344-345; Cock v Hughes [2001] WASC 24 at [50].

The place of publication 34 In paragraphs 20 to 20.4 of the amended statement of claim the applicant alleges that following the publication of the Material, a Mr Ned Hoffman, who is alleged to be an American citizen, "shunned and avoided" the applicant and did not use the applicant's services. There are a number of difficulties with these paragraphs, including that it is not squarely alleged whether the applicant claims that the respondents published the Material to Mr Hoffman, or whether the applicant alleges that the loss was caused by some other publication of the Material. If the applicant alleges an actionable publication of the Material to Mr Hoffman by the respondents, it would be necessary to allege any facts that were within the knowledge of Mr Hoffman which gave rise to any true innuendos on which the applicant relies. The applicant's allegation that Mr Hoffman is a citizen of the United States may be an indirect allegation that the Material was published to Mr Hoffman in one of the States of the Unites States, but whether this allegation is made is unclear. 35 As I have indicated, the respondents complain that the applicant does not plead where the matters were published. The place of publication may be material if the applicant relies upon publication by the respondents outside Australia. That is because under Australian principles of private international law, the applicable law will be that of the law area of the place of publication: see generally, Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575. It may therefore be prejudicial to a respondent if the applicant does not plead the law areas in which particular publications are alleged to have been made: A v Ipec Australia Ltd [1973] VR 39 at 51; Hewitt v ATP Tour Inc [2004] SASC 286 at [46]-[48]. That is because the respondents may wish to allege and prove a defence available under the law area of the place of publication: Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at [68]-[71]; Meckiff v Simpson [1968] VR 62 at 64-5; Hewitt v West Australian Newspapers Ltd (1976) 17 ACTR 15 at 21. However, there is a factual presumption that the law of the place of any publication outside Australia is the same as the law of the forum, and if no party seeks to put foreign law in issue, then it is unnecessary to plead it: Walker v W A Pickles Pty Ltd [1980] 2 NSWLR 281 at 285, 289.

Defamatory meaning 36 The tort of defamation is concerned with injury to reputation. In order to be actionable, a matter must be disparaging of the applicant or expose the applicant to ridicule, or cause people to shun and avoid the applicant. The test, reduced to its essentials, is whether the published matter is likely to lead ordinary decent persons, being reasonable people of ordinary intelligence, experience, and education who brought to the question their general knowledge and experience of worldly affairs, to think less of the applicant: Radio 2UE Sydney Pty Ltd Pty Ltd v Chesterton at [4]-[6]; Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31 at [54]. For brevity, the objective standard as explained more fully in the authorities is usually referred to by reference to the standard of the hypothetical "ordinary reasonable reader". 37 The meaning of a published matter is determined objectively. This is the case whether the applicant relies on the words in their natural and ordinary meaning, or upon a true innuendo arising from knowledge by the recipient of the publication of extrinsic facts. In the case of a true innuendo, the question of defamatory meaning is concerned with the objective understanding of the ordinary reasonable reader with knowledge of the extrinsic facts: Radio 2UE Sydney Pty Ltd v Chesterton at [51]; Duncan and Neill on Defamation (Butterworths, 1983) at [4.18(b)], cited in Australian Broadcasting Corporation v Chau Chak Wing at [31]. 38 The falsity of a published matter is not a necessary element of the cause of action. However, the substantial truth of the imputations about which an applicant complains is a defence at common law and under statute: Defamation Act 2005 (NSW), s 25. A respondent's knowledge of the falsity of a defamatory imputation may be relevant to questions of malice which may defeat defences of common law or statutory qualified privilege, and may be relevant to the assessment of damages if the malice affects the harm sustained by the applicant: Defamation Act 2005 (NSW), ss 30(4), 36.

The Material 39 In relation to the publication of the Material, the applicant clarified in submissions to the Court that he does not claim that the Material was defamatory in its natural and ordinary meaning. It is therefore unnecessary to determine whether to accept the submissions of the respondents that in its natural and ordinary meaning the Material was not reasonably capable of conveying to the ordinary reasonable reader any meaning that was defamatory of the applicant, because the applicant disclaimed any reliance on the natural and ordinary meaning of any publication of the Material (T26/46-T27/27). 40 It is necessary then to turn to the applicant's reliance upon true innuendos alleged to arise in relation to the publication of the Material. In paragraph 2.12.1 of the amended statement of claim the applicant has defined the term "true innuendo" as "True Innuendo". The applicant's subsequent allegation in paragraph 12.6 of the amended statement of claim that "the Material makes false statements of and about the Applicant through True Innuendo" is vague and confusing. The applicant alleges in the particulars of paragraph 12.6 that the Material imputes that he is a liar, but the applicant does not - (1) identify clearly any extrinsic facts that are relied upon as supporting this meaning; or (2) identify clearly those persons to whom he alleges the Material was published who had knowledge of those extrinsic facts. 41 Paragraph 12.7 of the amended statement of claim, which is set out at [13] above, does not identify those persons who are alleged to have knowledge of any relevant extrinsic facts, but is framed by reference to the "ordinary reasonable person". 42 Paragraph 12.8 of the amended statement of claim, which is also set out at [13] above, is embarrassing in a number of respects, including because it makes a generalised allegation that the "[r]eputation of the Applicant is … reduced" when the Material is read "in the special meaning by specialist classes", without specifying what imputation or "special meaning" the applicant alleges, what extrinsic facts support such meaning, or that any persons to whom it is alleged the Material was published possessed knowledge of those extrinsic facts. Moreover, paragraph 12.8 appears to allege publication as an hypothesis rather than to allege any actual publication.

The ASX Publication 43 The pleading of the ASX publication is also embarrassing. Paragraph 15.1 of the amended statement of claim is focussed on statements in the matter that are alleged to be false. Paragraph 15.2.1 then alleges that "the falsehoods impute…". 44 Paragraph 15.2 is confusing. It is not clear whether the applicant alleges a meaning arising from the natural and ordinary meaning of the ASX Publication, or whether the applicant is relying upon knowledge of any and if so what extrinsic facts. If the pleading includes the latter, the applicant has not identified to what persons with knowledge of those extrinsic facts the matter was published. 45 The confusion in paragraphs 15.1 and 15.2 is compounded by 15.4 which alleges "the literal sense and the True Innuendo Sense" but refers in 15.4.1 to the natural and ordinary meaning. 46 Paragraph 15.5 introduces a claim that staff of the ASX who received the applicant's complaint knew of the "Extrinsic Fact that there is a dispute between the Applicant and the Respondents", and then alleges in 15.5.1 a "natural innuendo" which is not specified. 47 In the course of argument, counsel for the respondents submitted that some of the meanings alleged by the applicant in paragraphs 15.2.1.1 to 15.2.1.8 (see [15] above) might be capable of arising if they were drafted in an appropriate way, but that most were not. It was accepted that the meaning alleged in paragraph 15.2.1.1 might be capable of arising.

Damages and other relief 48 There are difficulties also with the applicant's pleading of damages. The applicant uses the heading "The Aggravated Damages" above paragraph 17 of his amended statement of claim, but it is not clear that a claim for aggravated damages is what the applicant intends to allege, because most of the allegations thereunder appear to be directed to economic loss. As to aggravated damages, see Triggell v Pheeney (1951) 82 CLR 497 at p 513-514, Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at p 216, 238, and Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at p 50-52, 65-66, 71, 74. One of the difficulties with paragraphs 20, 21, and 22 of the amended statement of claim is that it is not clear whether the losses of opportunity alleged therein are alleged to have been caused by the publication of the Material, the ASX Publication, or both. It is also not clear whether it is part of the applicant's case that either of those matters was published by the respondents to any of the persons identified in those paragraphs, and if so, whether any of those persons possessed knowledge of any and what extrinsic facts to support the defamatory meanings that the applicant will allege. 49 The applicant accepted that he could not seek orders for apologies or corrections.

Conclusions 50 The respondents seek summary judgment in relation to the publication of the Material. Although I have held that the pleading is embarrassing, I decline to give summary judgment. That is because the applicant's attempts to date at pleading a cause of action based upon one or more true innuendos arising from an alleged publication of the Material do not enable me to form a view at this stage as to whether the applicant has a reasonable prospect of prosecuting such a claim. In Trau v University of Sydney (1989) 34 IR 466, Gleeson CJ stated that if one sees that there is extreme difficulty in formulating with clarity and particularity a cause of action, then it is often a good indication that there is no cause of action. However, that comment was made in the context of the plaintiff's lawyers experiencing such difficulty. In this case the applicant is unrepresented, and understandably is not as well equipped as an experienced lawyer to assess and formulate any cause of action based upon a true innuendo that might reasonably be available to him. In my judgment, the applicant should not be precluded at this stage from having a further opportunity to plead a claim based upon the alleged publication of the Material, if such a claim is reasonably available to him. 51 The respondents do not seek summary judgment in relation to the ASX Publication, but seek orders that material paragraphs of the amended statement of claim be struck out. In relation to the ASX Publication, the amended statement of claim is confusing, and fails to differentiate between what is alleged to be the natural and ordinary meaning, and those meanings that are alleged to arise by way of true innuendo. 52 In relation to the pleading of any true innuendos that are alleged to have been conveyed by the publication of either of the Material or the ASX Publication, the amended statement of claim fails to allege in a clear fashion - (1) the extrinsic facts upon which the applicant relies; (2) those persons with knowledge of the extrinsic facts to whom the applicant alleges the matter was published; (3) the occasions of publication; and (4) the meanings which the applicant alleges were conveyed by the matter to those persons. 53 I will make orders that the amended statement of claim be struck out in its entirety with leave to re-plead. I do so because the difficulties with the amended statement of claim are manifold and difficult to disentangle. Should the applicant decide to re-plead, the applicant will have to present a statement of claim that alleges tenable causes of action in a way that substantially complies with the rules and practice as to pleading. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.

Associate: Dated: 14 November 2019 SCHEDULE OF PARTIES TAD 9 of 2019 Respondents Fourth Respondent: ANDREW FORD Fifth Respondent: RAMY AZER Sixth Respondent: GRANT THORNTON Seventh Respondent: SHEENAGH EDWARDS