Burrows v Fairfax Media Publications Pty Ltd

MCKERRACHER J: 1 The applicant (Ms Burrows) seeks leave of the Court to file a further amended originating application and to file a further amended statement of claim. Ms Burrows claims that the respondents (Fairfax Media and a number of its journalists), published an article and made posts on social media which defamed her in various ways. As currently drafted, these defamatory claims are pleaded as five separate complaints though in reality they are drawn from only two distinct courses of conduct. By the proposed further amended statement of claim, Ms Burrows seeks to add two further complaints, join two additional Fairfax journalists as respondents, add claims under Sch 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) to the existing complaints and further particularise her claim for aggravated damages. 2 Fairfax opposes each of these amendments. There are also two minor amendments which it does not oppose. For the reasons that follow, Ms Burrows will be granted leave to make the amendments she seeks except for those relating to claims under the Australian Consumer Law and the further particulars of aggravated damages. Leave will also be granted to join the additional respondents.

THE CURRENT PLEADING 3 The current statement of claim pleads five matters that comprise Ms Burrows' defamation claim. 4 The First Matter concerns the publication of a Facebook post by Fairfax (as the administrator of the Sydney Morning Herald Facebook page) which includes a link to an article published on the Sydney Morning Herald's (SMH) website that is headlined: "Headline-grabbing solicitor stands by her 60 Minutes' man". Following initial amendments to the statement of claim by consent in July 2020, the article itself was removed from the pleading and its author removed as a respondent. The First Matter is confined to the Facebook post containing the link and the comments made by other Facebook users on the post which are alleged to be under the care and control of Fairfax. 5 The Second Matter concerns the publication in the print edition of the SMH and on the SMH website of an article headlined: "Judge recommends Salim Mehajer's lawyer be referred for possible disciplinary action". It is authored by the third respondent, Ms Kate McClymont who is a journalist employed by Fairfax. 6 The Third, Fourth and Fifth Matters concern tweets published by Fairfax, Ms McClymont, and the fourth respondent, Ms Lucy Cormack (another journalist employed by Fairfax) from each of their respective Twitter accounts. Each of the three tweets contains a link to the article published on the SMH website that is the subject of the Second Matter as well as brief descriptions of the article. 7 Ms Burrows claims that each of these publications conveyed various defamatory imputations about her, though it is unnecessary to consider them for present purposes.

THE PRINCIPLES 8 The relevant principles on an application to amend an originating application and statement of claim are well known and were comprehensively stated by Gleeson J in Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu [2015] FCA 1098 (at [122]-[128]): 122 Leave to amend an originating application is to be considered under rule 8.21 and leave to amend a statement of claim under rule 16.53. 123 Rule 8.21 of the Rules provides relevantly: (1) An applicant may apply to the Court for leave to amend an originating application for any reason, including: … (g) to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises: (i) out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or (ii) in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding. (2) An applicant may apply to the Court for leave to amend an originating application in accordance with paragraph (1)… (g)(i) even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started. 124 By rule 16.53, unless rule 16.51 applies, a party must apply for the leave of the Court to amend a pleading. Rule 16.53(4) provides that an amendment of a pleading that is made under rule 16.51 takes effect on the date the amendment is made. Relevant case law 125 The applicable principles are well established. The Court's powers in rules 8.21(1) and 16.53 are broad. Consideration of whether to grant leave to amend must be undertaken in accordance with the overarching purpose set out in s 37M(1) of the Federal Court Act: Australian Competition and Consumer Commission v Jutsen (No 2) [2010] FCA 982 at [12]; Suzlon Energy Ltd v Bangad [2011] FCA 92; (2011) 196 FCR 259 at [19]; University of Sydney v ResMed Limited (No 5) [2012] FCA 232 at [14]; Bowen Energy Ltd v 2KD Drilling Pty Ltd [2012] FCA 275 at [8]. 126 The onus is on the party seeking leave to amend to persuade the Court that such leave should be given: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17]. 127 The principles articulated by the High Court in Aon apply to matters in this Court: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 ("Cement Australia") at [43]. Relevant matters the Court is to consider include: (1) The nature and importance of the amendment to the party applying for it: Aon at [102]; (2) The extent of the delay and the costs associated with the amendment: Aon at [102]; (3) The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102]; (4) The explanation for any delay in applying for that leave: Aon at [108]; and (5) The parties' choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 ("Luck") at [44]; (6) The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and (7) Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30]. 128 The weight to be given to the considerations identified in Aon, individually and in combination, and the outcome of the balancing process, may vary depending on the facts in the individual case: Cement Australia at [51].

The Sixth Matter complained of 9 The Sixth Matter complained of is in much the same form as the Third, Fourth and Fifth Matters. It concerns the publication of a tweet by Mr Andrew Hornery, an SMH journalist, which contains a link to the article published on the SMH website that is the subject of the Second Matter. The tweet was published by Mr Hornery on 29 July 2019, which Ms Burrows acknowledges was well before these proceedings were commenced. However, she says that it has remained on Twitter where it can be read and downloaded by others and that the publication was only brought to her attention after the proceedings were commenced. 10 Ms Burrows relies on rr 8.21(1)(g)(i) and 16.51(4)of the Federal Court Rules 2011 (Cth) and submits that the Sixth Matter is underpinned by the same facts, matters and circumstances as those that underlie the Twitter publications comprising the Third, Fourth and Fifth Matters. She says that the Sixth Matter forms a party of the same justiciable controversy as already arises between the parties. 11 Should this amendment be allowed, Ms Burrows seeks to add the author of the tweet, Mr Hornery as a respondent.

The Seventh Matter complained of 12 The Seventh Matter complained of concerns the addition of an editor's note to the article that is the subject of the Second Matter. The editor's note was added, and the article re-published on the SMH website on or around 7 September 2020 (the original article having been published on 29 July 2019). The original article had reported the handing down of a decision of a judge of the New South Wales District Court in which Ms Burrows' conduct of the proceeding was described as 'delinquent' and directions were made referring her and another barrister to the Law Society and the NSW Bar Association. The judge also strongly criticised the conduct of Ms Burrows' clients. 13 The editor's note, subsequently published at the top of the article, reports that on 7 September 2020 the New South Wales Court of Appeal declared invalid the directions referring Ms Burrows to the Law Society and the NSW Bar Association on the basis that the 'persons concerned' had not been afforded an opportunity to be heard in relation to the directions, and were denied procedural fairness in relation to matters liable to adversely affect their reputations. 14 Ms Burrows correctly submits that an amendment may be made to plead a fact or matter that has occurred or arisen since the proceeding started: r 16.51(4) of the Rules. 15 Should this amendment be allowed, Ms Burrows seeks to add Ms Lisa Davies, editor of the SMH, presumably as the purported author of the editor's note.

Claims under the Australian Consumer Law 16 Ms Burrows also seeks leave to amend the First, Third, Fourth, Fifth and Sixth Matters (assuming leave to include the Sixth Matter is granted), to include claims under the Australian Consumer Law. Specifically, it is contended that the representations made by Fairfax to the public in trade or commerce were misleading or deceptive in contravention of s 18(1) of the Australian Consumer Law. Reliance is also placed on s 4 of the Australian Consumer Law. Ms Burrows submits that these new claims constitute valid causes of action that are within time and for which reputation damages may be claimed and awarded.

Further particulars of aggravated damages and removal of special damages 17 Ms Burrows seeks to amend the statement of claim to remove the claim for special damages. That amendment is not opposed. 18 She also seeks to add to the particulars of aggravated damages as follows (proposed amendments underlined): Particulars of Aggravated Damages 58. 61. [Ms Burrow's] hurt and injury has been increased by reason of her knowledge of the falsity of the imputations. 59. 62. [Ms Burrow's] hurt and injury has been increased by her knowledge that [Fairfax] placed the first matter complained of on the internet for viewing and reading by persons throughout the world. 60. 63. [Ms Burrow's] hurt and injury has been increased by her knowledge that the respondents' have failed to apologise despite letters of 26 May 2019 and 3 June 2019. 61. [Ms Burrow's] hurt and injury has been increased by her knowledge that the respondents' have failed to apologise and take down the second and seventh matter complained of despite the acknowledgment published on the seventh matter complained that the NSW Court of Appeal declared invalid directions made by Judge Wilson on 24 July 2019 on the basis that the directions were liable to adversely affect the reputations of the persons concerned, but without them being afforded an opportunity to be heard, and thus constituted a denial of procedural fairness. 62. [Ms Burrow's] hurt and injury has been increased by her knowledge that the Respondents assert Judge Wilson referred the applicant to the Law Society for possible disciplinary action despite Judge Wilson not making such referral or direction in his judgment.

FAIRFAX'S ARGUMENTS ON THE AMENDMENT APPLICATION 19 In addition to rejecting on several bases that Ms Burrows has been defamed at all, Fairfax opposes a grant of leave for Ms Burrows to further amend her amended statement of claim as proposed. 20 As to the Sixth Matter, Fairfax says it adds nothing material to Ms Burrows' existing case. The tweet does little more than link through to the URL which contains the Second Matter (with a short summary of what that article is about). There is no additional commentary included, either by Mr Hornery or any third party. To the extent that readers of the tweet clicked on that link, those readers are included in statistics for the number of 'hits' on the Second Matter by virtue of being taken to the SMH website. As deposed by Ms Leanne Norman, solicitor for Fairfax, in an affidavit affirmed on 8 March 2021, the data kept by Fairfax in relation to visits to pages on the SMH website includes all visits to the relevant webpage no matter how access was gained. In particular, the data includes the number of persons who obtained access to the relevant webpage by clicking on a hyperlink appearing on social media platforms, including Twitter. 21 To the extent that readers of the tweet only viewed the tweet itself, without linking through to the Second Matter, Fairfax says that is likely to have occurred only on the day on which the tweet was first issued. It says the electronic characteristic of Twitter is such that older tweets by Mr Hornery are pushed down the page of his Twitter feed as he posts new tweets, with the consequence that tweets are quickly obsolete or unable to be viewed on the page within a short time of being posted (likely only hours, or even minutes, depending on how often Mr Hornery was posting tweets on that day), and can thereafter only be located if a specific search is made, or if the reader scrolls down the feed through hundreds or thousands of subsequent posts until they locate it. 22 Fairfax also points out that Ms Burrows seeks to include the Sixth Matter some 20 months after the tweet was posted. Given the applicable 12 month limitation period (s 14B of the Limitation Act 1969 (NSW)), Fairfax says any claim in respect of the tweet would be confined to downloads (views) of the tweet in the 12 months prior to the date on which her amendment to the pleading is made, being the date on which the amendment takes effect: r 16.54 of the Rules (publication, in this context, being constituted by the downloading of the material on to the computer of the reader: Dow Jones and Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 (at [44])). Consequently Ms Burrows' claim is contended to be out of time to capture anything other than the most trivial extent of publication of the tweet, if any, given that the vast majority of downloads of the tweet would have occurred on or about 19 July 2019. Fairfax submits that the proposed amendment should therefore be disallowed, as being contrary to the overarching purpose enshrined in s 37M of the Federal Court Act 1976 (Cth). 23 As to the Seventh Matter, Fairfax contends that the claim adds nothing material to the applicant's existing case. It points out that the imputations pleaded in relation to the Seventh Matter simply mirror the imputations already pleaded in respect of the Second Matter. 24 Fairfax also says that most importantly, the new pleading does not properly take account of the contents of the editor's note, which notes that the Court of Appeal declared the directions made in the District Court to be invalid. It contends that this in effect renders the pleaded imputations, which derive from the report of the District Court's findings and directions, incapable of arising. Fairfax says the proposed amendment should therefore be disallowed, as being contrary to the overarching purpose enshrined in s 37M of the Act. 25 As to the proposed joinder of Mr Hornery in connection with the Sixth Matter and Ms Davies in connection with the Seventh Matter, Fairfax submits that in the event that the Court allows both or either of these amendments, the joinder of both or either individual should be refused. In relation to the Sixth Matter, Fairfax says that to the extent that any downloading of the tweet within the relevant 12 month period is proved, the first respondent accepts liability for such publication such that Mr Hornery is not a necessary party in the circumstances. Similarly, to the extent that any downloading of the Seventh Matter is proved, Fairfax accepts liability for such publication such that Ms Davies is not a necessary party in the circumstances. 26 In relation to the new claims under the Australian Consumer Law, Fairfax submits that such claims are not available to Ms Burrows. The respondents are each persons who carry on the business of providing information, and the publications were published in the course of carrying on that business. As such, by virtue of section 19(1)(a) of the Australian Consumer Law, the respondents are exempt from the application of s 18. Section 19(1)(a) provides as follows: 19 Application of this Part to information providers (1) This Part does not apply to a publication of matter by an information provider if: (a) in any case - the information provider made the publication in the course of carrying on a business of providing information … 27 In addition to the plain wording of s 19 which is said to clearly compel such a conclusion, Fairfax relies upon the decision of Kostov v Zhang [2017] NSWDC 7 (at [51]-[52]), in which the District Court held that Fairfax Media was an 'information provider', in the following terms: 51 There can be no doubt that [Fairfax Media Publications Pty Ltd] is an information provider, and that the matter complained of was published in the course of the [Fairfax Media Publications Pty Ltd] carrying on its business of providing information. 52 Accordingly, the plaintiff's cause of action for contravention of the ACL is manifestly hopeless, and ought be summarily dismissed pursuant to rule 13.4(a) of the UCPR. This part of the claim is struck out. 28 In addition, Fairfax says that even if s 18 did apply, Ms Burrows' purported reliance on s 4 of the Australian Consumer Law appears to be misconceived, and is not adequately pleaded or particularised in any event. That section deems representations with respect to any future matter to be misleading if the maker of the representation does not have reasonable grounds for making the representation. The alleged representations which are said to be made with respect to any future matter are not identified, and it is not apparent that any of the representations pleaded meet such a description. 29 The respondents also object to the proposed further particulars of aggravated damages as set out above (at [18]). Ms Burrows already claims damages for the publication of imputations said to be conveyed by the Second through Seventh Matters (should the Sixth and Seventh Matters be allowed) which claims would include damages for hurt to feelings. Fairfax says the aggravated damages claim is thus effectively just repeating the claim that is already made in the substantive pleading of the applicant's causes of action, and is not properly a matter of aggravation. It says the proposed amendment should be disallowed on this basis.

CONSIDERATION 30 For the reasons given by Fairfax, Ms Burrows cannot amend to add any claims for relief under the Australian Consumer Law. Section 19 of the Australian Consumer Law creates a clear exception in the case of information providers to the application of Pt 2-1. A statutory exception to this effect has existed for 35 years since Re Australian Ocean Line Pty Ltd v West Australian Newspapers Limited and William Ross Harvey [1985] FCA 37; 58 ALR 549. 31 Further, the claim in the alternative under s 4 is not adequately pleaded or particularised; the pleading does not disclose how the Matters pertain to a future matter. Although if it were capable of doing so, the onus would shift to Fairfax to establish that it did have reasonable grounds for its representations. 32 Each of these pleadings is fundamentally misconceived. Leave to make these amendments is refused. 33 As noted, the Sixth Matter is similar in its form to the Third, Fourth and Fifth Matters in that it raises the publication of a tweet by an SMH journalist containing a link to the Second Matter on the SMH website. Although there is undoubtedly merit in Fairfax's submission that Ms Burrows is confined to only the most nominal viewing and/or downloading of the tweet by operation of the limitation period, it concedes that the tweet remains publicly searchable and can also be located by any Twitter user who scrolls back far enough through Mr Hornery's Twitter feed. In addition, regard must be had to r 8.21(2) of the Rules which provides that: An applicant may apply to the Court for leave to amend an originating application in accordance with paragraph (1) (c), (d), (e) or subparagraph (g) (i) even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started. 34 The rationale for this provision was explained by Gordon J in Environinvest Ltd (in liq) v Former Partnership of Webster, White, Gridley, Nairn, Newman, Peters and Miller (2012) 208 FCR 376; [2012] FCA 1307 (at [29]): Rule 8.21(2) expressly provides that an applicant may apply to the court for leave to amend an originating application in accordance with rr 8.21(1)(c), (d), (e) or (g)(i) even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started. Put simply, r 8.21(2) expressly provides that amendments made under, inter alia, r 8.21(1)(c) or (d) can be made notwithstanding the effluxion of a relevant limitation period. Such a result is not surprising. It is not surprising because, consistent with the earlier analysis of "mistake", such an amendment does not change or alter the substantive basis on which the proceeding was commenced. 35 While Ms Burrows has not explained in any great detail the reason why she is only now seeking to add the Sixth Matter in circumstances where the tweet was published many months before the proceedings were commenced, Fairfax has not pointed to any prejudice that it would occasion if the amendment is allowed. Nor is it apparent that the addition of the Sixth Matter will add significant delay or costs to the proceedings, particularly where the Matter arises out of very similar circumstances to the Third, Fourth and Fifth Matters already pleaded. Although there is a sound argument that nothing functionally useful is added by pleading the Sixth Matter, it is doubtful whether it is appropriate in these circumstances for the court to preclude Ms Burrows raising the pleading even though it is difficult to see what it could add. In these circumstances, the addition of the Sixth Matter should be allowed except to the extent that it was to include any claim under the Australian Consumer Law. 36 Similarly, while it is likely correct that the Seventh Matter adds little to Ms Burrows' case, I do not consider this to be a proper basis for refusing leave to amend in the absence of any identifiable prejudice to Fairfax. The addition of the editor's note occurred after the proceedings were commenced and resulted in the re-publication of the article the subject of the Second Matter more than a year after its initial publication. Whether and to what extent the addition of the editor's note nullifies the imputations that Ms Burrow pleads is a matter for Fairfax in considering its defence. It is not a basis to refuse leave to amend. It is clear that the Seventh Matter arises out of substantially the same facts as those already pleaded and was published after the start of the proceeding. Permitting the amendment (except for any claim under the Australian Consumer Law) will therefore allow the entire controversy between the parties to be determined together and avoid a multiplicity of proceedings. 37 In relation to the proposed joinder of Mr Hornery and Ms Davies, Fairfax's acceptance of any liability, if established, for the publication of the Sixth and Seventh Matters is a sound practical reason why applicants or plaintiffs properly advised would see little if any practical benefit in the additional cost and complication of joining additional individual journalists. But it is not a sufficient basis to refuse leave to join those individuals. While the position advanced by Fairfax may be entirely correct, the reality is that Mr Hornery and Ms Davies were involved in the publication of the Sixth and Seventh Matters respectively in much the same way that Ms McClymont was involved in the publication of the Second and Fourth Matters and Ms Cormack in the Fifth Matter. Their conduct forms part of the same factual circumstances as that of Fairfax in this proceeding and raises the same questions of law such that separate proceedings could theoretically be brought against each of Mr Hornery and Mr Davies. In these circumstances, Ms Burrows will be permitted to join Mr Hornery and Mr Davies as respondents. 38 Finally, Ms Burrows has not advanced any submission in support of her amendment to include additional particulars of aggravated damages. In my view for reasons advanced by Fairfax, the additional particulars add nothing. The matters can be ventilated by evidence and the respondents will not be taken by surprise. This amendment will not be permitted.

CONCLUSION 39 Orders will be made granting leave to Ms Burrows to make the amendments she seeks to the originating application and statement of claim, except for the proposed additional amendments concerning claims under the Australian Consumer Law and aggravated damages. She will also be permitted to join Mr Hornery and Ms Davies to these proceedings. 40 It is of significant concern that the pleadings in this matter have been re-shaped on a number of occasions and are yet to be finalised almost a year after it was commenced by Ms Burrows. It continues to organically expand. But the question is to what functional benefit. Without some form of intervention, proceedings of this nature are liable to becoming stuck in procedural skirmishes at great cost to the parties, the Court and the community. 41 It is in the best interests of both parties and in my assessment, essential, that this matter be referred back to mediation or other suitable form of intervention by an experienced registrar in light of the changes to the pleadings that have occurred since September last year and the nature of the pleading and the case generally. 42 Orders were made by consent on 18 March 2021 setting a timetable for the filing of amended pleadings and evidence following the determination of this application. That timetable will be adjusted to require the parties to participate in a mediation or similar intervention following the close of pleadings. 43 In these circumstances, I will reserve the question of costs arising from the application. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher.