procedural issues
17 Brief mention should be made of some procedural issues that arose in relation to the interlocutory application.
18 The first procedural issue concerned the timing of the interlocutory application. Mr Goodfellow drew attention to the fact that the interlocutory application had been filed before Fairfax and Mr Duff had filed a defence. He noted that Fairfax and Mr Duff had not applied for r 16.32 of the Rules to be dispensed with. Rule 16.32 requires a defence to be filed within 28 days after service of a statement of claim.
19 In Murphy v Nationwide News Pty Limited [2017] FCA 603, White J declined to dispense with r 16.32 in a defamation case where the respondent raised similar pleading challenges to those made in this case. His Honour noted that the apparent practice of such pleading challenges in defamation cases had developed in State courts where defamation cases are heard before a judge and jury, whereas civil trials in this Court are almost invariably tried by a judge alone. His Honour expressed the view that practices that had developed in jurisdictions where defamation cases are tried by judge and jury should not be inflexibly applied in this Court. White J also considered that the course proposed by the respondent had the potential to be productive of delay and was therefore contrary to the overarching purpose of efficient and expeditious resolution of litigation reflected in s 37M of the Federal Court of Australia Act 1976 (Cth).
20 Many of the observations made by White J in Murphy are apposite to this case. Nevertheless, two points should be noted. First, Mr Goodfellow did not object to the interlocutory application being determined prior to Fairfax and Mr Duff being required to file their defence. Indeed, he consented to the orders that brought the interlocutory application on for hearing at an early stage. Second, it is tolerably clear that White J was not intending to lay down an invariable rule that such applications in defamation matters in this Court should not be made and determined before the respondent is required to file a defence. The question whether an interlocutory application concerning the pleadings in a defamation case can or should be considered before a defence is filed must be considered on the facts of each case.
21 The more significant point raised by Mr Goodfellow in this context was that the fact that Fairfax and Mr Duff had filed the interlocutory application before they had filed their defence created a hurdle for them. That hurdle was said to be that, to the extent that their objections to the particularised imputations relied on the contention that the form of the imputations was likely to cause prejudice or embarrassment at the pleading stage, that contention could not be made out until they filed their defence. In Mr Goodfellow's submission, the form of the particularised imputations is only significant if Fairfax and Mr Duff plead a defence of justification under s 25 of the Defamation Act, or a defence of contextual truth under s 26 of the Defamation Act. That submission is considered later in the context of the challenge to the form of the particularised imputations.
22 The second procedural issue concerned the part of the interlocutory application that sought a separate trial of the form and capacity questions pursuant to r 30.01 of the Rules. It is, it must be said, most unusual, at least in this Court, for challenges to pleadings, particularly challenges concerning the form of the pleadings, to be the subject of an order for a separate trial under r 30.01. Such challenges are ordinarily made under r 16.21 of the Rules.
23 In Murphy v Nationwide News Pty Limited (No 2) [2017] FCA 781, White J drew attention, again in circumstances analogous to this case, to the fact that the procedures under r 30.01 and r 16.21 are conceptually distinct. Most significantly, the determination of whether there should be a separate trial of a question arising in a proceeding under r 30.01 is an interlocutory decision. There is considerable jurisprudence concerning the circumstances where it is, and is not, appropriate to order a separate or preliminary trial of a question in a proceeding. If, however, the Court orders a separate trial of a question under r 30.01, that issue is then determined on a final basis. Thus, if the Court determines a question concerning a pleading as a separate question under r 30.01, that is a final, not an interlocutory decision. There is no question of the Court granting leave to re-plead. The determination of an application under r 16.21, on the other hand, is unquestionably an interlocutory decision. Where a pleading, or part of a pleading, is struck out under r 16.21, the Court can, and ordinarily does, give consideration to whether leave to re-plead should be granted.
24 It is to be noted that in Murphy (No 2), the respondents ultimately only pressed the application under r 16.21.
25 Fairfax and Mr Duff pointed out that the practice of applying for a separate trial of questions concerning the form of pleaded imputations in defamation cases, and in particular questions concerning whether the relevant publication was capable of conveying the pleaded imputations, developed in the Supreme Court of New South Wales in the 1970s and 1980s. The practice arose because it was perceived that it was harder to strike out a defective pleaded imputation on an interlocutory basis, having regard to the test that was to be applied to such applications, than it was to determine the issue separately on a final basis. It seems that the preferred approach was to determine questions concerning the imputations on a final basis as a separate and preliminary question.
26 It is worth noting, in this context, that s 8 of the Defamation Act provides that a person has a single cause of action for defamation in relation to the publication of defamatory matter, even if more than one defamatory imputation about the person is carried by the matter. Thus, the cause of action is based on the publication, not the individual imputations carried by it. By way of contrast, under the former Defamation Act 1974 (NSW) (the 1974 Act), a plaintiff had a cause of action for each defamatory imputation. It appears to be well recognised that defamation actions under the 1974 Act in New South Wales were unfortunately bedevilled by meretricious pleading debates: cf. Adeang v The Australian Broadcasting Corporation [2016] FCA 1200 at [22].
27 Whatever may have been the origins of the practice or procedure of applying for the separate and preliminary trial of challenges to pleaded imputations in the New South Wales Supreme Court, or indeed any State court, it is difficult to see how it could be said to be an appropriate procedure for resolving pleading disputes in defamation actions in this Court. The rather technical, pedantic and pettifogging approach to pleadings that appears to have been displayed in some of the cases decided under the 1974 Act in the New South Wales Supreme Court should not be encouraged under the current Defamation Act, particularly in this Court. Such an approach is plainly inconsistent with contemporary case management in this Court in light of the overarching purpose of the civil practice and procedure rules identified in s 37M of the Federal Court Act. The fact that defamation actions in this Court are likely to be tried by judge alone provides an even greater reason why a practical and common-sense approach should be taken to issues concerning the pleadings in such cases.
28 Defamation actions in this Court should be approached like all other civil actions. The same principles should apply to interlocutory disputes concerning pleadings. A party who alleges that all or part of a pleading in a defamation case is defective or deficient in some material way should ordinarily apply for the pleading, or part of it, to be struck out pursuant to r 16.21 of the Rules. That is so whether the complaint is as to the form of the pleading, or a more substantive complaint, including, in the defamation context, that the imputation is not reasonably capable of being conveyed by the matter complained of. One of the reasons why the procedure under r 16.21, as opposed to the procedure under r 30.01, should be invoked is that if a pleading or part of it is found to be defective, consideration can then be given to whether the applicant should be granted leave to re-plead. The procedure under r 16.21 is also likely to be more efficient and less expensive than the procedure under r 30.01, which might require an interlocutory hearing to determine if a separate trial should be ordered, and then a separate hearing of the question if such an order is made.
29 That is not to say that a separate trial under r 30.01 of a question arising from a defamation pleading will never be ordered. There may be some cases where a final determination of a separate question arising from a defamation pleading may be appropriate. If there is such a case, however, it would have to satisfy the principles that generally apply to applications for separate trials under r 30.01, including that ordering such a separate trial would be just and convenient and would provide the most efficient and inexpensive approach to resolving the proceeding: see generally Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 240 FCR 276; Olbers Co Ltd v Commonwealth of Australia (No 3) [2003] FCA 651; University of Sydney v ResMed Ltd (No 5) [2012] FCA 232. It has been suggested that ordering the separate trial of a question under r 30.01 is a "procedure that should be approached with caution and can be fraught with difficulties": Save the Ridge Inc v Commonwealth (2005) 147 FCR 97 at [15]. It may be expected, therefore, that defamation cases where it is appropriate to deal with pleading issues separately and on a final basis will be rare.
30 Beyond referring to the origins of the practice in the New South Wales Supreme Court, Fairfax and Mr Duff did not advance any substantive submission as to why it would be just and convenient to determine the challenges to Mr Goodfellow's pleading as a separate question under r 30.01. Indeed, it was fairly conceded that the original rationale for the practice had been eroded by subsequent decisions concerning the appropriate test to apply in determining the capacity question.
31 In all the circumstances, the application that there be a separate trial of the question concerning the form of the particularised imputations, and the question as to the capacity of the relevant publication to give rise to the particularised imputations (paragraph 1 of the interlocutory application) should be dismissed. No proper basis has been shown for why the complaints about the pleading should be heard separately and on a final basis under r 30.01.
32 The remaining question is whether the particularised imputations, or some of them, should be struck out pursuant to r 16.21, either because they are bad in form, or because they are not capable of being conveyed by the "matter complained of" - the article. While the submissions advanced by Fairfax and Mr Duff tended to address those two contentions together, they are best dealt with separately.