HER HONOUR: This is an action for defamation arising out of a short but colourful article published on The Sydney Morning Herald website. Apart from the usual denials, including the optimistic contention that the matter complained of is not capable of defaming either plaintiff, the only defence maintained by the defendant is the defence of justification.
The defendant has also pleaded its own alternative meanings but evidently only for the purpose of preserving its position in the event of an appeal. It is accepted that those paragraphs of the defence are liable to be struck out in accordance with the decision of the Court of Appeal in Fairfax Media Publications v Bateman [2015] NSWCA 154.
The plaintiffs seek to have the defence struck out on the basis that the particulars of justification, taken at their highest, are incapable of proving the truth of any of the plaintiffs' imputations. As the argument was developed, the defence was challenged on the alternative basis that the particulars lack precision and are liable to be struck out on that account.
The issues for consideration in determining the application are, accordingly, whether the particulars lack appropriate precision and, separately, whether they are capable of supporting the defence.
The first plaintiff is Mr Neil Brooks. The imputations specified by him as arising from the matter complained of are as follows:
The First plaintiff was arrested in France by French Police.
The First plaintiff was reasonably suspected by French Police of having committed fraud.
The First plaintiff is a conman in that he has scammed dozens of people out of millions of dollars including mums, dads, multimillionaires, Australian celebrities, international stars and sporting teams in Australia and overseas.
The First plaintiff fled Australia in order to avoid paying hundreds of thousands of dollars in child support.
The First plaintiff, with his wife, misappropriated millions of dollars on the Gold Coast.
The First plaintiff has destroyed people's lives by defrauding them.
The second plaintiff the first plaintiff's wife who, in these proceedings, is named as Elle Brooks. She has specified the following six imputations as arising from the matter complained of:
The Second plaintiff was arrested in France by French Police.
The Second plaintiff was reasonably suspected by French Police of having committed fraud.
The Second plaintiff is a fraudster in that she has scammed dozens of people out of millions of dollars including mums, dads, multimillionaires, Australian celebrities, international stars and sporting teams in Australia and overseas.
The Second plaintiff stole about $80,000 from her French employer.
The Second plaintiff, with her husband, misappropriated millions of dollars on the Gold Coast.
The Second plaintiff has destroyed people's lives by defrauding them.
Section 25 of the Defamation Act 2005 (NSW) provides that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
As contemplated by that section, the defence pleads, as to four of the six imputations specified by the first plaintiff and as to all of the imputations specified by the second plaintiff, that each of those imputations is substantially true. However, the particulars of the defence, rather than separately specifying the facts, matters and circumstances relied upon in respect of each imputation separately, adopt the structure of a narrative of particulars under various headings not in terms related to the imputations and mostly unrelated to each other. Those particulars are numbered 1 to 92. The pleading then turns at the conclusion of that narrative to identify which of the preceding paragraphs are relied upon in respect of each individual imputation. No doubt that approach was adopted for convenience and to avoid repetition but it is an approach which risks obscuring the clarity of the case to be met by the plaintiffs at trial.
In her careful submissions, Ms Chrysanthou, who appears for the plaintiffs, cited those provisions of the Uniform Civil Procedure Rules 2005 (NSW) which convey to practitioners in this State the content of the requirement to include particulars in a pleading. Importantly, they include an obligation to include within the pleading particulars of the facts, matters and circumstances relied upon to establish that each imputation was substantially true.
In a survey of older authorities that was both informative and interesting, Ms Chrysanthou made good the proposition that those rules reflect long-standing principles at common law. The starting point is the unexceptionable principle that a defendant, by its pleading and particulars, must put the plaintiff on notice of the case he or she is required to meet (they should "furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it": Dare v Pulham (1982) 148 CLR 658 at 664.2.)
Ms Chrysanthou referred to a number of authorities which support the proposition that the defendant must specify the particulars relied upon with the same precision as in an indictment: Hickinbotham v Leach (1842) 10 M & W 361; 152 ER 510, per Alderson B at 510.9 (in argument); Zierenberg v Labouchere [1893] 2 QB 183, per Lord Esher MR at 186.1-.3; Wooton v Sievier [1913] 3 KB 499, per Kennedy LJ, at 508.7; Sims v Wran [1984] 1 NSWLR 317 per Hunt J at 328E; Crosby v Kelly [2013] FCA 1343 per Rares J at [33].
That expression ("with the same precision as in an indictment") is one which is capable of being misunderstood. It is a requirement of specificity rather than one going to the amount of information to be provided. As I observed during argument, the amount of detail in an indictment is often spare but the specificity provided should be such as to put an accused person on notice of the Crown case as to each element of the offence with which he or she is charged.
Ms Chrysanthou further noted that a publisher cannot refuse to provide proper particulars of justification on the premise that it will do so after discovery, interrogatories and subpoenas. If authority were needed for that unexceptionable proposition, it may be found in the recent decision of the defamation list judge in the District Court, Gibson DCJ in Rothe v Scott (No 2) [2015] NSWDC 143 at [13] to [20] and the authorities her Honour has there cited.
Ms Chrysanthou submitted (and I accept) that particulars of a truth defence in a defamation matter may be particularly important for at least three reasons.
First, if the particulars are not sufficiently specific, the plaintiff and the Court may be put at a disadvantage. Particularly, so far as the plaintiff is concerned, he or she will not be in a position to narrow pre-trial enquiries and preparation, nor to marshal refuting evidence to test the defendant's evidence.
Ms Chrysanthou cited the decision of J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357 where it was stated that the defendant:
"ought to state those facts specifically, to give the plaintiff an opportunity of denying them; for the plaintiff cannot come to the trial prepared to justify his whole life."
Ms Chrysanthou noted that that requirement is particularly important where, notwithstanding the limited elements of a claim in defamation which fall to be proved by the plaintiff, it is the plaintiff who ordinarily gives evidence first.
Secondly, Ms Chrysanthou submitted that a defendant to a defamation action is in that position by reason of being (or having been alleged to be) a publisher of defamatory material. She said "it behoves a publisher of such material, at least one who asserts what has been published is true, to be armed with the information to back up the allegations and to inform the plaintiff accordingly", again referring to J'Anson in the following quote:
"Now here if the defendant can support his charge that the defendant has defrauded diverse persons, it must be known to him whom he has defrauded and he must call them as witnesses to prove the particular acts of fraud. If he cannot substantiate his charge, he ought not have to have made it."
Those remarks are of particular resonance in the particular case, as noted by Ms Chrysanthou. The matter complained of was the newspaper's description of a television program about to be broadcast by a different publisher. The matter complained of appears (from what I have seen of the broadcast in material put before me on the present application) to have been couched in more extravagant terms than the broadcast itself. The imputations pleaded by Ms Chrysanthou reflect that.
The third reason identified by Ms Chrysanthou for taking particular care in the particularisation of a truth defence in a defamation action was the principle of proportionality emphasised in ss 56 to 60 of the Civil Procedure Act 2005 (NSW) and acknowledged in the Defamation List Practice Note (SC CL 4).
Ms Chrysanthou submitted that those considerations require that proceedings be limited so that the legal costs incurred are not out of all proportion to the matters the subject of dispute. An approach of "punting high and following through" (my words) is inimical to those considerations.
Mr Richardson, who appeared for the defendant on the present application (but was not the author of the defence), did not take issue with the proposition revealed by the older authorities referred to by Ms Chrysanthou that a truth defence must be particularised with the specificity of an indictment.
He submitted, however, that that principle, whilst being unexceptionable so far as it goes, "must be read in light of the propositions stated in Hayson", a reference to the judgment of Hodgson JA in Hayson v John Fairfax Publication Pty Limited [2007] NSW 376 at [20] where his Honour said:
"For my part I would accept that there could be circumstances where particulars fall so far short of being capable of supporting the truth of imputations that it could be justified to strike out imputations. However, the particulars do not themselves indicate the outer limits of what may be proved. They indicate, in effect, topics on which evidence may be led. But the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate."
In terms, those remarks plainly refer to the first issue raised by the plaintiffs' application; namely, the sufficiency of the particulars to sustain the truth defence in respect of each individual imputation. I do not think they say anything on the subject of the separate question of precision; nor do they derogate from or dilute the principle that particulars in support of a justification defence are required to conform to the requirement of precision applicable in respect of a criminal indictment.
One aspect of the defendant's argument in the present case must be wholly rejected; that is the proposition that there is "no prejudice" to the plaintiffs if they are required to await the task being undertaken by the defendants, the trawling through a large number of documents obtained on subpoena by the television station TCN Channel Nine in separate proceedings commenced by the plaintiffs in respect of the broadcast.
In particular, Mr Richardson submitted, in light of the similarities between the defences in the two cases, that the plaintiffs have been aware of the case to be put against them for some 17 months. He noted that the amount of documents produced pursuant to subpoenas issued in the TCN Channel Nine proceedings is considerable; that there are many potential witnesses and that the canvass of the particulars is vast. Mr Richardson submitted that it was "simply not feasible" to have properly answered a request for particulars made by the plaintiffs in the time allotted.
Those submissions ignore the principles revealed in the authorities referred to by Ms Chrysanthou that a publisher ought properly be ready to mount a justification defence at the time of publication or else ought not publish in terms that are defamatory.
Reference might be made in that context to the decision of Bryson J in Northam v Favelle Favco Holdings (Supreme Court (NSW), 7 March 1995, unrep). That was a case determined in a different context, where a defendant sought to have a statement of claim struck out as embarrassing. But some of the principles stated by his Honour are pertinent to the plaintiffs' complaint of lack of specificity in the present case.
Bryson J said:
"A pleading may be embarrassing even though it does contain allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties of doubts about recognising or piecing together what is referred to, or if imprecise or slang words are used with unduly broad ranges of possible meanings or without clear meanings. What is referred to must be clearly stated showing, as appropriate, when and where an event happened, who participated, what was said, what was the relevant effect of any document and so forth. It is not fair to require a defendant to flesh out general expressions or indirect allusions by piecing together information in other documents such as affidavits or experts' reports. He might get it wrong, and the greater the complexities are, the more probable it is that he will understand what is alleged in some different way to what the plaintiffs will rely on. Procedural justice can be upset just as much by opportunistic advocacy exploiting a choice among several possibilities as by an ambush from complete concealment. In the world of practicalities a defendant is unlikely to receive much protection when evidence is tendered which is an available meaning of a leading if he has not attacked the pleading at an interlocutory stage."
Although plainly made in different circumstances, those remarks resonate with some of the difficulties with the approach taken by the defendant in the present case. I would regard the approach of having a narrative of particulars under headings unrelated to any of the individual imputations as problematic. In my view, the defence should be re-pleaded with particulars stated in support of each imputation being brought together under a relevant heading. As observed by Bryson J in Northam, the plaintiff and the Court should not have to undertake that task. His Honour observed at the conclusion of the judgment in that case (in response to a contention which resonates with the defendant's position in the present case) that the fact that other material had been provided to inform the question as to the case to be put did not reduce the importance of a carefully distilled pleading, it only increased the difficulties complained of. In my view, that is an observation which applies equally to the present case (for example, references in the pleading to judgments obtained against the plaintiffs in other proceedings).
The approach of listing the particulars of justification under the heading of each imputation sought to be defended will focus the mind of the pleader on what is truly a fact, matter or circumstance logically capable of supporting an imputation as opposed to being no more than part of a broad attack on the plaintiffs. At one level, that is enough to dispose of the plaintiffs' application since, in my view, the defence will have to be re-pleaded in accordance with those propositions.
I do wish, however, to turn to make some observations as to the discrete complaint that the particulars are not capable of proving the truth of individual imputations.
Having regard to the fact that the plaintiffs have made a detailed request for particulars which remains outstanding, I do not think it would be appropriate definitively to rule that any particular imputation cannot stand, subject to one qualification. Each plaintiff has pleaded two imputations relating to an event apparently captured on footage in the Channel 9 broadcast which the defendant alleges amounted to the arrest of the second plaintiff.
The defendant accepts that the first plaintiff was nowhere near that incident and does not seek to justify those two imputations in respect of the first plaintiff.
As to the second plaintiff, however, the defendant appears to seek to maintain a defence of justification on the strength of the appearance of the footage and evidently having no information whatsoever as to whether the second plaintiff was in fact arrested in France by French police, which is the attribution alleged in the imputation.
Nothing put before me on the present application suggests that the defendant has any evidence capable of supporting the truth of that or the second imputation (that she was reasonably suspected by French Police of having committed fraud). The defendant has evidently made no contact with French police or indeed informed itself as to whether the second plaintiff was in fact arrested as opposed to merely "assisting the police with their inquiries", as the euphemism goes. It is an important difference in the context of criminal proceedings.
So far as the information presently before the Court reveals, the defendant has no particulars capable of justifying those two imputations in respect of the second plaintiff. In my view, the defence in respect of those imputations should be struck out.
The issues raised by the remaining imputations are more difficult.
Ms Chrysanthou acknowledged during argument that the imputation (which is (e) in each case) of misappropriation of millions of dollars on the Gold Coast is capable of being sustained by the present particulars.
In each case, the plaintiffs have relied on a related imputation (at least one that is related in so far as the truth defence is concerned) that each is a conman or fraudster who has scammed "dozens of people out of millions of dollars including mums, dads, multi-millionaires, Australian celebrities, international stars and sporting teams in Australia and overseas".
Mr Richardson valiantly contended that it would be enough to prove the substantial truth of those imputations if each of the plaintiffs has scammed four persons, none of whom meets the specific descriptions provided.
He submitted that the plaintiffs "seem to be of the view that by sticking in enough tricky subclauses and multiple concepts into their imputations they can evade the case the defendants intend to run and triumph with an early strike out". It must be observed, however, that the so-called "tricky subclauses and multiple concepts" are drawn in terms from the matter complained of itself.
Returning to the authorities to which Ms Chrysanthou referred, if the defendant did not at the time of publication have information to prove the truth of the second sentence of the matter complained of, it should not have been published. It was an extraordinary allegation; it should not have been made without justification, in both the legal and vernacular sense of that term.
However, at this point, I would not consider that I can properly strike out that aspect of the defence, since it may be that further particulars responding to the plaintiffs' request can be provided. But I do not accept that particulars to support scamming four people are capable of proving an imputation of scamming dozens.
The first plaintiff relies on an imputation that he fled Australia in order to avoid paying hundreds of thousands of dollars in child support. Nothing in the existing particulars, in my view, is capable of supporting that imputation. Unless there is something further that comes from the further material to be provided in response to the plaintiffs' request, the defence to that imputation should also be struck out.
One further separate imputation relied upon only by the second plaintiff is that she stole about $80,000 from her French employer. Again, it seems to me that the present particulars are barely capable of supporting that imputation. But it may be that when they are properly collected and distilled with clarity in the manner referred to in these reasons, it will emerge that the defence to that imputation can stand.
Finally, each plaintiff pleads an imputation that he or she has "destroyed people's lives by defrauding them". The fate of that imputation is intimately connected to that of the conman imputation. Again, whilst I would not feel confident striking out the defence at this stage, it seems to me that the particulars are thin but that is an issue that will have to be revisited when the matter is re-pleaded.
For those reasons, the orders are:
1. that the particulars in support of the justification defence be struck out with leave to re-plead;
2. I direct the defendant to file and serve an amended defence within 28 days. I stand the matter over to the Defamation List on 16 October 2015;
3. I order the defendant to pay the plaintiffs' costs of the application as agreed or assessed on the ordinary basis, save as to the costs of addressing the Bateman argument which costs are to be paid as agreed or assessed on the indemnity basis.
[2]
Amendments
05 August 2016 - Typographical error in case name
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Decision last updated: 05 August 2016