Darling v Daniels

The relevant principles as to pleadings 10 There was no dispute as to the relevant principles to be applied in determining whether the Proposed Amended Claim met the requirements for a pleading. 11 Clear, concise pleadings that articulate the case alleged are essential to the fairness of the conduct of court proceedings: Betfair Pty Limited v Racing New South Wales [2010] FCAFC 133; (2010) 189 FCR 356 at [49]‑[53] (Keane CJ, Lander and Buchanan JJ). 12 Pleadings and particulars have three functions, namely (a) to furnish a statement of the case that is sufficiently clear to allow the other party a fair opportunity to meet it; (b) to define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and (c) to give an understanding of the claim in aid of the right to make a payment into court: Dare v Pulham (1982) 148 CLR 658. 13 The complaint in the present case was as to whether the Proposed Amended Claim performed the first function, particularly as to whether it was unclear as to the basis upon which Seven West Media was said to be a publisher of the five media reports (including the way in which it was said to be vicariously liable for alleged publication by Mr Daniels). 14 Where, as here, the issue that is raised in relation to a pleading concerns whether the case has been properly articulated having regard to what is required to establish a particular element of the claim, it is necessary to have in mind the state of the authorities as to that element, recognising that claims may be made which seek to expand or develop the scope of existing case law.

Publication in the law as to defamation 15 The law of defamation imposes liability for publications which cause damage to reputation by reason of a demonstrated defamatory meaning. Publication involves a bilateral act by which the publisher makes the publication available, and someone has it available for comprehension. The tort is one of strict liability: Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 at [25]-[26] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 16 Any voluntary act of participation in the process by which a publication is made available for comprehension is sufficient for a person to be a publisher: Webb v Bloch (1928) 41 CLR 331 as approved in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 273 CLR 346 at [30]-[32] (Kiefel CJ, Keane and Gleeson JJ), [62]-[68] (Gageler and Gordon JJ), [132]-[134] (Edelman J), [164]-[165] (Steward J). A party who procures or induces publication will be a participant in the publication. There is considerable breadth to the conduct that will make a person a publisher. Accordingly, particularly at its limits, it is an issue the resolution of which will be factually dependant. 17 Authorisation of further publication by another will also give rise to liability. 18 However, in all cases, it is participation in, or authorisation of, the publication that is alleged to be defamatory that gives rise to liability, subject to available defences (including the defence of innocent dissemination). 19 Separately, an employer will be liable for the publication of an employee and a principal for the publication of an agent acting within authority. The proprietor of a newspaper will be liable for the publications authorised by the editor on the basis of the authority given by a proprietor to an editor: see Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 595 (Gaudron J).

Seven West Media as the holding company of WAN 20 One aspect of Mr Darling's pleading objected to by the respondents was its reliance upon Seven West Media being the 'ultimate holding company' that 'owns and controls' WAN in support of its claim as to publication. The respondents maintained that the mere fact that an entity was the holding company of a publisher was insufficient to make the holding company a publisher relying on Consolidated Press Holdings Ltd v John Fairfax Publications Pty Ltd [2002] ACTSC 63 and Mundine v Brown [2010] NSWSC 468. For his part, Mr Darling disavowed any case that Seven West Media may be found to be a publisher just because it is the holding company and ultimate owner of WAN. Instead, he maintained that it was one matter to be considered with others. 21 In the result, the respondents' objection was not to the reference to Seven West Media being the holding company, but to alleged uncertainties as to the nature of the case as to publication that was being advanced by Mr Darling.

Particular paragraphs of the Proposed Amended Claim to which objection was taken

Paragraphs 2a and 2b 22 The first complaint concerns a plea in para 2 (advanced in the alternative) that Mr Daniels was employed or contracted by a company which 'by virtue of [Seven West Media] being its ultimate holding company, is owned and under the control of [Seven West Media] and part of [Seven West Media's] stable of media mastheads, such as "The West Australian" or "Channel Seven News" as described in paragraph 3 below'. It is followed by a plea that Seven West Media is vicariously liable in relation to the conduct of Mr Daniels as a journalist and reporter in respect of his activities as pleaded in later (identified) paragraphs. 23 By these aspects of para 2, it appears that some significance is being given to Mr Daniels being employed or contracted to a company 'owned and under the control' of Seven West Media for the case based upon vicarious liability. In short, it is the ownership and control by Seven West Media of the company that employs Mr Daniel as a journalist and reporter that is said to mean that Seven West Media is vicariously liable for his actions as a journalist and reporter. Nothing more than the words 'owned and under the control' supports the plea. 24 As has been mentioned, senior counsel for Mr Darling disavowed reliance upon the mere fact that Seven West Media was the ultimate holding company. Therefore, the plea seeks to rely upon some aspect of the way in which ownership and control is allegedly exercised by Seven West Media over the company that employs or contracts Mr Daniels as the basis for vicarious liability. The difficulty is that there is no hint in the pleading as to what those matters are alleged to be. 25 Alleged vicarious liability in defamation for the employee of another entity is a claim that requires the articulation of the material facts advanced to support it. The respondents are entitled to know the material facts that are relied upon as being significant for the claim of vicarious liability on the part of Seven West Media for a person who, in the case of the alternative, is not an employee or contractor of WAN.

Paragraph 3A 26 The next plea (para 3) concerns Seven West Media. It is a long list of matters which are ultimately given significance by para 3A which is in the following terms: The Applicant relies upon the matters set out in paragraph 3. above, including inferences to be drawn thereupon, in respect to Seven West Media being a publisher of the publications complained of below. 27 Before considering the objections to para 3, it is appropriate to consider where they are headed, a matter that is only revealed by para 3A. The form of para 3A is somewhat strange. It is not a plea that by reason of the matters pleaded in para 3, Seven West Media is a publisher of the publications complained of in the balance of the pleading. Rather, it is a claim that the matters in para 3 will be relied upon 'including inferences to be drawn thereupon'. Further, they are to be relied upon 'in respect to' Seven West Media being a publisher. 28 Consequently, the precise nature of the case as to why Seven West Media is said to be a publisher remains obscure for two reasons. First, part of what is relied upon is not stated at all. It is to be found in unspecified inferences to be drawn from the matters listed in para 3. The precise nature or content of those inferences is not identified. The result is that the plea is an elaborate way of saying that the basis upon which Seven West Media is alleged to be a publisher of the five media articles is because of unspecified matters to be inferred from what is listed in para 3. That is to say, it is an elaborate way of not pleading the full nature of Mr Darling's case. 29 Second, as will emerge, para 3 contains a list of matters none of which state in a clear and concise way the nature and extent of the alleged participation in, or authorisation of, the relevant acts of publication that is alleged as the basis for the claim that Seven West Media was a publisher of those publications. 30 For those reasons, para 3A considered in the context of existing para 3, is defective.

Paragraph 3 31 It is sufficient for present purposes to provide some examples of the objections to para 3. It takes the form of a list of attributes of Seven West Media that are alleged to have pertained at all relevant times. 32 In para 3e it is alleged: By Virtue of being its ultimate holding company owns and controls its subsidiary company West Australian Newspapers Ltd (ACN 008 667 632), which operates under the business name 'The West Australian' (WAN). 33 In para 3f it is alleged: By Virtue of being its ultimate holding company owns and controls its subsidiary company Channel Seven Perth Pty Ltd ACN 008 679 294 which operates under the business name 'Channel Seven' (Channel Seven). 34 On the face of these two pleas they allege that it is the exercise of rights that Seven West Media has, as the holding company of WAN and Channel Seven respectively, that are the material facts relied upon. However, the submissions advanced for Mr Darling made plain that his case was not confined in that way and that there were aspects of the way that Seven West Media 'owns and controls' WAN and Channel Seven that are significant for his case. Precisely what those aspects may be was not articulated. 35 In para 3, there follows allegations, amongst others, to the effect that Seven West Media is 'integrated with' WAN and Channel Seven and that Seven West Media 'holds itself out' as a publisher of The West Australian. Other matters previously pleaded have been deleted. They are addressed separately below. 36 In substance, the terms of para 3 allege that Seven West Media 'owns and controls' WAN and Channel Seven, that there is some form of unspecified integration of the activities of Seven West Media with WAN and Channel Seven and that Seven West Media 'holds itself out' as the publisher of The West Australian. These are advanced as the matters on which the claim that Seven West Media is a publisher of the five media articles is advanced. Bearing in mind that the articles are said to have been published under the masthead of The West Australian, there is considerable ambiguity in the claim of publication. 37 The concepts used are far too general to provide any meaningful guidance as to the nature of the case to be advanced for Mr Darling. Consequently, it is unclear as to the nature and extent of discovery that may be appropriately required of Seven West Media, or indeed the witnesses, that it may be needed to address the case to be advanced. 38 At least part of the defect with the current plea is that it fails to articulate the material facts by reference to the publication of the press reports. Precisely what is it that Seven West Media did in relation to the publication of those reports (or generally in relation to reports of that kind that are published under the masthead The West Australian) that is the basis for the claim that it participated in or authorised the publication of those reports? 39 It was submitted that, in a case like the present, Mr Darling could simply have pleaded that the respondents published the matters complained of and thereafter any further elaboration of the plea would be addressed by particulars. I do not accept that submission. In the present case, Mr Darling accepts that the principal actor in the making of the relevant publications was WAN. The case against Seven West Media is that it also participated in that publication. As has been explained, the acts that may make a party a publisher are quite broad. However, they are not without limit. Whether a party is a participant in the publication (or is responsible according to principles of vicarious liability) depends upon the particular facts. In the present case it is plain that the question whether Seven West Media is a publisher and whether it can be vicariously liable for the acts of Mr Daniels are contested. In those circumstances, Mr Darling must articulate the material facts that are said to make Seven West Media a publisher or to give rise to vicarious liability for publication by Mr Daniels. The Proposed Amended Claim fails to perform that aspect of its purpose.

Deleted paragraphs 40 As has been explained, a number of matters alleged in the current statement of claim have been deleted from the Proposed Amended Claim on the basis that they are properly matters for particulars. They are further matters that had been included in the list of attributes of Seven West Media pleaded in para 3. 41 The deleted matters include a claim that Seven West Media holds itself out as being responsible for and takes responsibility for publications made in The West Australian by reason of the way in which it deals with complaints and legal claims about publications. They are still relied upon by Mr Darling despite their removal. Matters of that kind ought to be expressed in the pleading as material facts. They form part of the nature of Mr Darling's case as to why Seven West Media is alleged to be a publisher. 42 Other deleted matters concern the way in which content is obtained and shared between the media outlets that are ultimately owned and controlled by Seven West Media. They too are still to be relied upon. Again, matters of that kind ought to be expressed in the pleading as material facts if they form part of the basis for the claim that Seven West Media is a publisher.

Paragraph 16 43 The point made as to para 16 was to the effect that it was in the wrong place. If this had been the only complaint, I would not have upheld it. As I accept that there are substantive defects in other paragraphs, the inclusion of this paragraph in any orders will afford an opportunity to clarify the role of this paragraph.

Paragraph 21 44 Much later in the pleading, after the pleas as to the manner and place of publication and the alleged defamatory meanings of each publication, there is a plea (para 21) that Seven West Media 'encouraged and/or authorised [Mr] Daniels' to do certain things and that Mr Daniels willingly engaged in those things (para 22). By reason of their position in the pleading and the absence of any connection to the earlier allegations, the way in which these allegations are said to support the claims of publication (or if they relate to some other aspect) is unclear. It is an ambiguity that is prone to produce unfairness in the future conduct of the proceedings particularly as it relates to Mr Daniels' activities in other forms of media. 45 For those reasons para 21 is defective. As it relates to para 22, that is a reason for including both paragraphs in any orders to be made.

Overall characterisation of defects 46 This is not a case where there is an insufficiency in detail of a kind that might be ameliorated by requiring the provision of particulars or the delivery of affidavits or witness statements. Rather, the consequence of the defects I have identified is that there is substantial uncertainty as to the nature of the case that Mr Darling seeks to put when it comes to publication, both as to the alleged basis for Seven West Media to be a participant in the publications complained of and the basis for the claim that it is vicariously liable for the actions of Mr Daniels. The defects will make it very difficult to be able to resolve foreshadowed disputes as to the scope of discovery and, in my assessment, will make it difficult for the respondents to consider the available defences and to identify the nature and extent of evidence it will need to meet the claims.

General answer by Mr Darling 47 The strike out application was opposed on the basis of submissions to the effect that the points being raised amounted to nitpicking and petty-fogging of a kind that was not consistent with the modern approach to case management and pleading. 48 Similar submissions were advanced before me in support of an application for leave to appeal a decision to strikeout a pleading: Pigozzo v Mineral Resources Ltd [2023] FCA 331. As, I explained on that occasion (at [9]-[11]): (1) Such submissions invoke language used by Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 at [4]-[5] to the effect that the contemporary role of pleadings has to be viewed in the context of modern case management techniques which afford a degree of confidence that following the close of pleadings other steps will be undertaken 'to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met'. (2) The observations in Barclay Mowlem concerned instances where pleading points were taken to the effect that there should be further and more detailed articulation of a case when there were other case management mechanisms by which that detail could be provided, for example by requiring the provision of statements or affidavits before trial, the exchange of expert reports and the filing of submissions (as well as bespoke directions designed to expose the real issues and confine the case to them). (3) However, no aspect of that practice should be seen to sanction vagueness or imprecision as to the fundamental nature of the claim (or defence) being alleged. The obligation to clearly and concisely state the nature of a party's case remains. 49 For reasons that have been given, this is an instance where the fundamental nature of an important aspect of the case being advanced has not been clearly stated.

Orders 50 The strike out application was framed by reference to paragraphs in the existing statement of claim. As I have not accepted that the Proposed Amended Claim would address the concerns with the current pleading, the appropriate course is to make orders by reference to the current pleading being the further amendment of the further amended statement of claim filed 30 September 2024. 51 A submission was advanced to the effect that there should be no leave to replead. I do not accept that submission. I am not persuaded that the point has been reached where an order of that kind would be appropriate. Mr Darling should be given a further opportunity to plead his case. 52 Therefore, I will make orders directed to the paragraphs objected to as well as para 22.

Costs of earlier application 53 The respondents seek an order that the applicant pay the respondents' costs of and in connection with an earlier interlocutory application to strike out the statement of claim (filed 10 April 2024), including the costs of conferral, to be assessed if not otherwise agreed, and paid forthwith. The earlier application did not proceed because the applicant filed an amended pleading (on the basis that it might be the subject of a further application to strike out if considered appropriate). 54 Generally speaking, an interlocutory costs order is not to be taxed until the proceeding in which the order has been made has concluded: r 40.13 of the Federal Court Rules 2011 (Cth). There are good reasons for the ordinary approach: Sharif v Vitruvian Investments Pty Ltd (No 2) [2023] FCA 619 at [4]. The ordinary rule may be departed from where there has been unreasonableness in behaviour: Watson v Kriticos (Costs of Summary Judgment Application) [2021] FCA 917 at [23] (Perram J). I accept that a repeated failure to plead a case may justify a departure from the general rule, depending on the circumstances. The possibility of a long delay until costs might be recovered is also a factor to be taken into account. Action taken to defend a defective pleading that was obviously flawed in fundamental respects may also provide a basis for an order for costs to be paid forthwith. 55 The issue that has been addressed by the present interlocutory application appears to represent the remaining issue with the pleading. Other matters were addressed through conferral and amendment. There is no suggestion that the participation by Mr Darling in the process of conferral has been other than genuine. Many aspects have been resolved. In all the circumstances, I am not persuaded that there should be an order for costs of the earlier application to be paid forthwith. 56 The appropriate order as to the previous application is that the costs of and incidental to that application be the respondents' costs in the cause. 57 As the respondents have succeeded on the present application, there should be an order for Mr Darling to pay the costs of and incidental to that interlocutory application in any event. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.