Gutnick v Dow Jones & Co Inc

5. On 5 November 2003 oral argument on the defendant's application was heard. At that hearing the plaintiff relied upon written submissions dated that day. The defendant submitted only oral argument but both it and the plaintiff were given leave to deliver further written submissions. This they did by documents dated 11 and 13 November 2003 respectively.

8. As a significant part of the defendant's argument, both oral and written, focused upon the issue of qualified privilege which, it maintained, applied to its publication of the allegedly defamatory material sued upon by the plaintiff, leave was given to each party to make further submissions in writing concerning the effect of the recent High Court decision in Bashford v Information Australia (Newsletters) Pty Ltd[1] delivered on 11 February 2004. The New South Wales Court of Appeal decision in that case had been heavily relied upon by the defendant at the time of the November hearing and in its subsequent written submissions. Thus, further written submissions were filed on the Bashford point by the defendant on 25 February 2004 and 10 March 2004 and by the plaintiff on 2 March 2004. Thus, this ruling requires consideration of the oral arguments of both parties of 5 November 2003 and their written submissions on and since that date.

11. Like the 74 page document dealt with in the Court's judgment of 17 October 2003 the draft Defence now before the Court which the defendant seeks to file pleads justification and qualified privilege. It also pleads a number of facts which, the defendant maintains, go to the issue of mitigating the plaintiff's damages if he is entitled to any. The plaintiff maintains that the defendant should be denied leave to file this proposed amended defence as none of the matters pleaded in it raise arguable defences to his claim. His argument is that the defendant should be confined to the defence which is currently on the record, namely that pleaded in the Defence filed on 14 November 2001 but that that Defence should have struck from it what remained of a plea of qualified privilege (after the Court's decision of 21 March 2003)[2] on the ground that no satisfactory particulars have ever been provided (including those contained in the draft Defence which the defendant now seeks leave to file) which would justify the defendant being permitted to rely on that defence at trial.

15. The plaintiff pleads four specific imputations as arising from the material allegedly published by the defendant upon which he sues:-

"(a) (that he) was a customer of Nachum Goldberg who had recently been in prison for tax evasion and money laundering; and (b) (that he) was the biggest customer of Nachum Goldberg who had recently been in prison for tax evasion and money laundering; and (c) (that he) was masquerading as a reputable citizen when he was, in fact, a tax evader who had laundered large amounts of money through Nachum Goldberg; and (d) (that he) had bought Nachum Goldberg's silence so as to conceal his identity as one of the customers of Nachum Goldberg who had recently been in prison for tax evasion and money laundering."

These imputations have been already held to be arguable.[3] In the Defence which the defendant now seeks to place on the record it purports to justify that which it allegedly published about the plaintiff, asserting three relevant imputations as arising from the publication sued upon by the plaintiff:-

"(a) the plaintiff was reasonably suspected by prosecutors and investigators of having been a money laundering customer of Nachum Goldberg who had recently been in prison for tax evasion and money laundering; (b) there was reason to investigate whether the plaintiff was a money laundering customer of Nachum Goldberg who had recently been in prison for tax evasion and money laundering; (c ) there was reason to investigate whether the plaintiff had bought Nachum Goldberg's silence in order to conceal his involvement as a money laundering customer of Nachum Goldberg who had recently been in prison for tax evasion and money laundering."

The defendant seeks to particularise these imputations by reference to 10 particulars which allege a series of facts which, it contends, together make out the imputations.

22. The plaintiff submits that the imputations which the defendant now seeks to plead should not be permitted as they cannot, as a matter of law, provide an answer to the plaintiff's case. He says that they are not permissible variations of the plaintiff's imputations as that concept is understood in the Court of Appeal judgment in David Syme Co Ltd v Hore-Lacy.[4] He also complains that the proposed imputations are not open on the words the subject of his complaint and they are vague, unclear and imprecise. He also submits that the particulars which the defendant proposes are not capable of justifying the plaintiff's imputations or any permissible variation of them. They are embarrassing and should not be permitted.

25. Mr Wheelahan, who argued the case for the plaintiff, submitted that the proposed imputations infringed two rules of pleading in defamation cases which he referred to as the "conduct rule" and the "repetition rule", as well as failing to comply with the principle in Hore-Lacy. However, having regard to the view which I have formed as to the imputations sought to be pleaded by the defendant it is not necessary to go into the arguments based on the two rules to which Mr Wheelahan referred. It is sufficient to examine and apply the principle in Hore-Lacy to the proposed imputations to conclude that they do not meet the imputations pleaded by the plaintiff nor are they permissible variants of those imputations. Accordingly, they provide no defence to his case and cannot be allowed to remain on the record. They raise false issues and would embarrass the trial of the proceeding if they were permitted to be litigated.

28. The defendant's imputations are, in each case, imputations of reasonable suspicion. But the issue raised by the plaintiff's imputations is not whether he was merely suspected of particular arguably reprehensible conduct but rather whether he engaged in that conduct. In Lewis v Daily Telegraph[5] Lord Reid expressed himself as being firmly of the view that there is a great difference between saying that someone has behaved in a suspicious manner and saying that he is guilty of an offence.[6] Lord Hodson, in the same case, acknowledged that whilst it might be defamatory to say that someone is suspected of an offence, such a statement does not carry with it an allegation that he has committed the offence.[7] Simon Brown LJ (with whom Sir Ralph Gibson agreed) in Stern v Piper[8] accepted that Lewis' case decided that an allegation that someone is suspected of guilt is different to and less serious than an allegation that he is actually guilty. See also Corse v Robertson[9] and Singleton v Hudson[10].

31. In Shah v Standard Chartered Bank[11] May LJ summarised the position in a passage directly in point:-

"A publication that a person is guilty of something differs from a publication that there are reasonable grounds to suspect that he is guilty. Each is normally capable of being defamatory. The second will usually be less serious than the first. To justify the first publication, you have to establish that the person is guilty. To justify the second publication, you have to establish that there are objectively reasonable grounds for suspicion."[12]

35. Mr Robertson SC for the defendant submitted that the imputations sought to be relied upon by the defendant constituted no more than permissible variations of the imputations of guilt which, the Court has already held, are capable of arising in the terms pleaded by the plaintiff from the parts of the article upon which he relies. He relied particularly on a passage in the judgment of Ormiston JA in Hore-Lacy[13] where his Honour speaks of a case which might go to the jury with the plaintiff pleading imputations of high impropriety (ie in this case, guilt) and the defendant asserting that its meaning referred to less serious peccadillos which it wished to justify (i.e. in this case, suspicion of guilt). He also referred to the judgment of Charles JA where, after referring to the judgment of Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd[14] he expressed the view that the High Court judges' criticism of the practice sanctioned in Polly Peck (Holdings) Plc v Trelford[15] of permitting a defendant to plead and justify a meaning different from that contended for by the plaintiff would not hold good if the defendant were limited to justifying a meaning which was one upon which the plaintiff might himself obtain a verdict on the pleadings as they stand.

38. Mr Robertson contended that the plaintiff in this case could obtain a verdict in his favour if the tribunal of fact found, not that the article conveyed an imputation of guilt but merely that it contained an imputation of reasonable suspicion of guilt.

41. I cannot agree. As the cases to which I have referred make clear, whilst both allegations might be libellous they are not variants of each other as that term is used in Hore-Lacy. The two sets of imputations raise quite different cases. To meet the plaintiff's case the conduct of the plaintiff must be impugned. But, the "Particulars of truth" proffered by the defendant in support of its proposed plea of justification

44. do not implicate the plaintiff in any way at all. If proved they would do no more than establish that the plaintiff knew someone called Emmanuel Althaus who was a money laundering customer of Goldberg. They assert that Althaus was a close personal friend and business associate of the plaintiff and that he, Althaus, was involved in money laundering as a customer of Goldberg, that Goldberg told an Israeli banker that the plaintiff was his biggest customer, that the plaintiff signed cheques which Goldberg used to launder money, that in sentencing Goldberg Judge Strong referred to other unnamed persons and that the plaintiff failed to explain himself to the defendant when asked to do so. All of these allegations seem to be a long way even from reasonable suspicion let alone guilt of illegal activity which, the plaintiff submits, the material upon which he sues accuses him of.

47. In the circumstances, the defendant will not be permitted to rely upon the plea of justification contained in paragraph 8 of its proposed Defence to the plaintiff's second further amended statement of claim.

51. The second part of the defendant's proposed pleading attacked by the plaintiff is that contained in paragraphs 9, 10 and 11 wherein the defendant seeks to raise a defence of qualified privilege. Paragraph 9 raises the defence in respect of the Internet publication of the allegedly defamatory material on a web site known as "Barron's Online". Paragraphs 10 and 11 seek to raise the same defence with respect to the defendant's print publication of the same material in its business and financial journal entitled "Barron's", allegedly published in Victoria shortly after the publication of "Barron's Online".

54. The question to be determined with respect to these paragraphs at this point is whether, assuming that the facts sought to be pleaded are true, they raise a defence of qualified privilege so as to excuse any defamatory imputations found to arise out of publication (in any of its forms) of the words complained of.

57. To answer this question it is first necessary to characterise the occasion on which each of the impugned publications occurred by reference to all its pleaded circumstances. Mr Robertson submitted that this characterisation could not be properly achieved short of the trial of the proceeding. I disagree. Unless the pleaded facts and circumstances, assumed for present purposes to be true, are capable of making out a case of qualified privilege then the defence should not be permitted to be put on the record. If it were so permitted when it could not succeed it would delay, embarrass and prolong any trial ultimately conducted and would probably lead to a complication of interlocutory processes such as discovery. It would be an abuse of the pleading process.

60. The defendant pleads that the Internet and print publications of "Barron's Online" and "Barron's" respectively occurred only in the performance by it of subscription contracts entered into between it and those persons who were entitled to download the online version or receive the print version by mail. It pleads that it was a specialist news and information service such that it had a legal, social or moral duty to make available to its subscribers articles and information concerning:

"(i) the trading of securities, derivatives and commodities, principally on exchanges in the United States; (ii) the financial performance of corporations whose shares or interests were publicly traded in the United Stated, or which had investments or businesses in the United States; (iii) factors which influence the behaviour of markets for commodities, securities and financial derivatives; (iv) the conduct of financial intermediaries, including information concerning executives, managers and other persons whose conduct is influential in business and financial affairs; (v) the conduct of businesses in particular sectors of the United States or global economy, and the performance of those sectors; (vi) the quality, performance, honesty, experience and integrity of regulators, executives and investors whose conduct and decisions might effect those businesses; (vii) the protection of consumers of financial products and services from unethical or unlawful conduct;"

64. The defendant pleads that its subscribers had a reciprocal interest in receiving the information it published and were:-

"(i) persons who actively traded in securities, commodities or derivatives on US financial markets or on other financial markets whose prices were influenced by trading on US markets; (ii) advisers of such persons including stock brokers and financial analysists; (iii) corporate treasurers, chief financial officers and other financial managers concerned with minimising the risk from fluctuations in the price of money, property, securities or commodities; (iv) corporate decision makers such as chief executives and company directors who have contractual and legal duties to manage shareholder funds and corporate assets to the best possible advantage; (v) fund managers and other financial intermediaries with duties to invest funds as trustees, managers or fiduciaries to the best possible advantage, and to minimise the risk of loss on those investments by derivates trading; (vi) public decision makers such as financial and competition regulators with an interest in or duty to ensure the efficient functioning of financial markets; (vii) financial and business executives with an interest in or duty to maintain knowledge of the performance of relevant markets and the integrity, conduct, honesty, experience and performance of past, present or future competitors, suppliers, business partners or consumers;"

68. The proposed pleading then alleges that the defendant had a duty to supply or an interest in supplying particular information concerning the plaintiff. The paragraph (9(d)) is divided into 12 sub-paragraphs, each of which paraphrases material contained in the part of the Barrons' article reproduced in the schedule to the plaintiff's second further amended statement of claim. Accordingly, some of the material pleaded relates to the imputations raised by the plaintiff and some of it does not. Finally, the defendant pleads that in his original statement of claim the plaintiff made an admission that the subscribers to Barron's and Barron's Online included brokers, financial advisers, the media, financial analysts and others connected to or working in the broking, finance, investment and mining industries (emphasis added).

71. The question to be determined is whether the defendant has raised an arguable case that the occasion upon which it published the words and pictures scheduled to the plaintiff's second amended statement of claim and from which the plaintiff's imputations arguably arise was one of qualified privilege. If the occasion is properly so characterised, the inquiry then becomes whether the plaintiff's imputations are relevant to that occasion. As Dawson, McHugh and Gummow JJ said in Bellino v Australian Broadcasting Corporation[16]

"It is true that, at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion. Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion. Moreover, the inclusion of the irrelevant part in the communication affords evidence of malice and can destroy the privilege attaching to the relevant part. As Lord Finlay LC said in Adam v Ward [1917] AC 309 at 318:

`The introduction of such extraneous matter may afford evidence of malice which will take away protection on the subject to which privilege attaches, and the communication on the extraneous matter is not made upon a privileged occasion at all, inasmuch as the existence of privilege on one matter gives no protection to irrelevant libels introduced into the same communication.'"

76. Qualified privilege of the kind sought to be relied upon in this case by the defendant is that privilege which arises when the maker of a statement has a duty (whether legal, moral or social) to make the statement and the recipient has a corresponding interest to receive it. The authority usually quoted for this proposition is the statement of Parke, B in Toogood v Spyring.[17] The effect of the existence of co-existing duty and interest is to prevent the inference of malice which would otherwise be presumed from the publication of a false defamatory statement. Once established, the defence can be defeated only by proof of actual malice. Parke, B justified the protection offered by qualified privilege when it exists on the ground that such protection was required "for the common convenience and welfare of society".

79. The plaintiff submits that the defendant's proposed pleading does not make out a case of mutual duty and interest between Barron's and its readers so as to raise qualified privilege. He relies on Macintosh v Dun.[18] That case concerned a reference given by a commercial organisation described as a "trade protection society". Its business consisted of obtaining information with reference to the commercial standing and position of persons in New South Wales and elsewhere and in communicating such information to its subscribers confidentially in response to specific and confidential inquiry on their part. The society's information was provided pursuant to a subscription contract. Lord MacNaghten, in giving the advice of the Privy Council, characterised the motive of the defendant in Macintosh as not being a sense of duty but rather a matter of business or self-interest. As his Lordship said:

"They carry on their trade, just as other traders do, in the hope and expectation of making a profit."

He described the trade engaged in by the society as "a peculiar one" and went on to refer to the ways in which the information obtained and ultimately published might have been collected. He concluded that the good of society did not require that the disclosure of such information for profit should be privileged. Significantly he referred to what he considered to be the methods by which such an organisation might obtain its information including from "disloyal employés" and "discharged servants".

84. Another case often contrasted with Macintosh v Dun is Howe v Lees[19]. In that case the members of an association of stock salesmen contracted with each other to supply information about the default of any purchaser of stock at the Bendigo sale yards. Failure to fulfil that obligation to supply information rendered a member of the association liable to forfeit a sum of money. The High Court held that each member of the association had an interest in making and receiving communications of information about defaulting purchasers. It followed that publication of such information occurred on a privileged occasion, there being the necessary reciprocity of duty or interest. The Court distinguished Macintosh v Dun, O'Connor J holding that the Privy Council's decision was to be understood as authority for no more than the proposition that "an individual or an association or corporation, that makes a business of collecting information about traders' credit and selling it for reward to other traders has no privilege to communicate defamatory matter in the information"[20] The distinguishing feature between the cases of Macintosh v Howe may, in fact, be that although in both cases there was a voluntary assumption of obligations, in the former the court found that inappropriate methods might or would be used to assemble the information conveyed whereas in the latter the person who made the communication already that the relevant knowledge.

87. Each of these cases was considered in the recent High Court decision of Bashford v Information Australia (Newsletters) Pty Ltd.[21] In that case the appellant claimed that he had been libelled in a publication called "Occupational Health and Safety Bulletin". The libel consisted of the publication by the defendant in the bulletin of an assertion that the appellant had been found liable in damages and costs in the Federal Court to a company called ACOHS Pty Ltd for causing that company harm and loss by publishing a false report concerning it. In fact the appellant had not been a party to the Federal Court proceedings. It was a company controlled by the appellant and his wife, R A Bashford Consulting Pty Ltd, which Merkel J had found liable to ACOHS Pty Ltd.

90. The majority in the High Court (Gleeson CJ, Hayne and Heydon JJ) held not only that the occasion of the publication of the Bulletin was subject to qualified privilege but that the matter which defamed the appellant was sufficiently connected to the privileged occasion for the defence to succeed.

93. Their Honours held that there was the necessary reciprocity of duty and interest between the respondent and the persons to whom the bulletin was published to give rise to the qualified privilege. This was so notwithstanding that the respondent published the bulletin by subscription for profit. Accordingly, it seems, that it cannot be said, (if it ever could have been) that the interposition of a paid subscription between the person making the defamatory statement and those to whom that statement was published is necessarily inconsistent with the existence of the requisite mutual duty or interest. It is equally clear that Bashford is not authority for the proposition that the publication of defamatory material pursuant to a subscription contract, without more, gives rise to the requisite duty to publish necessary to establish an occasion of qualified privilege.

96. The majority in Bashford also held that a significant feature of the case was the fact that subscribers to the Bulletin were only persons responsible for health and safety in the workplace and not any wider audience. They said:

"What set the respondent's Bulletin apart from some other paid publications was the narrow focus of both its subject matter and its readership. Because its subscribers were only those responsible for occupational health and safety matters, and because it dealt only with those matters, there was that reciprocity of duty or interest between maker and recipient which attracted qualified privilege. The circumstances of publication were, therefore, very different from those in which the general news media deal with matters of political or other interest. The premise for the development of the common law that was made in Lange v Australian Broadcasting Corporation[22] was that only in exceptional cases had the common law recognised a duty to publish or interest in publishing defamatory matter to the general public.[23] To hold that the occasion of publication of the matter complained of in this matter was privileged does not challenge that premise. In the present matter there was no publication to the general public. The occasion of the publication of the matter of which the appellant complained was rightly held in the courts below to be a privileged occasion."(emphasis in original)

100. Gummow J, who concurred with the majority in a separate judgment, also emphasised the significance of the bulletin being marketed directly by the respondent to specific occupational health and safety professionals. He noted that it was available only by paid subscription. He held that the existence of that subscription, and the obligation which it imposed on the publisher to supply information, whilst not generally determinative of the requisite duty to supply information for the purpose of establishing an occasion of qualified privilege was nevertheless relevant when consideration was being given to whether or not the respondent possessed the requisite duty to publish or interest in publishing the impugned article. His Honour had, earlier in his judgment, established the public interest nature of an occupational health and safety publication having regard to existing legislation on the topic in various jurisdictions.

103. In Bashford the narrow focus both of the subject matter of the publication and its readership were essential to the High Court's holding that there was there the necessary reciprocity of duty and interest between publisher and subscriber to give rise to an occasion of qualified privilege. The decision rests upon the confined nature of the publication and its distribution ". . . to persons responsible for occupational health and safety, and not to a wider audience".[24]

106. The defendant submits that Bashford has significantly expanded the defence of qualified privilege. McHugh J, in his robust dissent from the majority judgment in that case would seem to agree with this proposition. In a passage to which the defendant referred he raised the possibility of ". . . specialist publications concerning companies sent to investors, credit officers and other persons responsible for financial matters . . ." being arguably within the ambit of the decision. Whilst his Honour may be correct in respect of some publications sent to some investors, credit officers and other persons responsible for financial matters I respectfully suggest that the privilege could only arise in such circumstances where, as well as the matters to which his Honour has referred, there was present a narrow focus both as to subject matter and audience. In applying the majority judgment in Bashford full weight must be given to this requirement.

109. As has already been noted the Defence sought to be filed by the defendant in this case deals with three different circumstances of publication; subscription Internet publication, subscription hard copy publication and news stand publication. For present purposes it is sufficient if attention is directed to the first two of these methods of publication. Unless the proposed pleading raises an arguable case of qualified privilege in respect of those there would be no possibility of the defendant being able to raise such a case in respect of the third. I appreciate, of course, that there is a serious factual dispute as to whether there were any copies of the relevant addition of "Barron's" sold on news stands in Victoria, but that need not concern the Court at this stage.

112. The defendant's proposed Defence pleads that it only made available access to its Internet publication (paragraph 9) and its print publication (paragraph 10) to subscribers. But it pleads no restriction on the class of persons who are able to enter into subscription contracts with it. On the contrary the proposed pleading in paragraph 9(c) defines Barrons' audience in the widest possible terms, encompassing virtually anyone who has any interest in any capacity in business or financial matters. It would be surprising if the defendant did seek to limit access to its publications having regard to evidence as to the nature of those publications and their circulation which it has put before the Court and to which reference is made hereunder. It is notorious that daily newspapers such as the Age or the Australian Financial Review and periodicals such as Business Review Weekly are obtainable on subscription by anyone who is prepared to pay the appropriate sum. There is nothing in the defendant's proposed pleading which would distinguish Barron's in either of its forms from the Age, the Financial Review or the Business Review Weekly as far as availability to the general public is concerned.

115. Mr Wheelahan read two affidavits on this application which had originally been filed by the defendant on the application heard by Hedigan J as to the nature of Internet defamation. Mr Robertson raised no objection to Mr Wheelahan reading those affidavits and, in any event, it would appear that the material contained in them is not contentious.

118. The first affidavit was that of Howard Gold who deposed that the world wide circulation of the print copy of Barron's is 305,000 of which 14 copies were sent to Australia. The other affidavit read by Mr Wheelahan was that of one Robert Sichler who deposed that WSJ.com (the web site through which Barron's Online is accessed) has grown into the largest subscription news site on the world wide web with over 535,000 paid subscribers of whom fewer than 1,700 paid their subscriptions by credit cards issued by Australian banks; the inference being that that would be indicative of the approximate number of subscribers in Australia. There is no evidence in either of those affidavits and, as I have already noted, no pleading in the proposed Defence of the defendant which suggests that access to a Barron's subscription, whether in print or on the Internet, is in any way restricted other than by the requirement of paying the appropriate subscription. There is very little in common between the publications with which this case is concerned and that examined in Bashford at least insofar as the breadth of their respective distribution is concerned.

121. The interest of the recipient in the publication of material on an alleged occasion of qualified privilege must be a social, moral or economic interest that is sufficiently tangible for the public interest to require its protection.[25] In Telegraph Newspaper Co Ltd v Beford,[26] Evatt J said that the interest a recipient has in receiving information on an alleged occasion of qualified privilege must be:

". . . something much more than mere curiosity as to the private business or affairs of other persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(it must be) a real and direct personal, trade, business or social concern."[27]

Nor does a belief by the defendant, even an honest and reasonable belief, that the recipient of the information had an interest or duty in respect of its receipt, create an occasion of qualified privilege.[28] The occasion must be established, not merely a belief in one of the facts necessary for its existence.

126. The second aspect in which this case differs from Bashford is in the width of the topics to which each relevant publication is directed. As the High Court pointed out in Bashford the subject matter of the publication there under discussion was narrow. The defendant's proposed pleading in this case (paragraph 9(b)) sets out seven matters with which Barron's Online and Barron's print publication are concerned. Taken as a whole they would define the contents of any newspaper or magazine one could imagine which dealt with business or financial matters. Mr Wheelahan referred in his argument to the Australian Financial Review and the Business Review Weekly as being notorious local publications whose contents would fit within the pleading of proposed paragraph 9(b). One could probably add the Age, the Sydney Morning Herald and every provincial newspaper of any substance in the country.

129. Despite McHugh J's pessimism expressed in the passage in his judgment to which the defendant referred, it would be impossible to confine a publication which concerned itself with publishing the information described in proposed paragraph 9(b) to readers as diverse and numerous as those envisaged by proposed paragraph 9(c) within the constraints accepted by the majority in Bashford as being necessary to found a good case of qualified privilege.

132. It follows that there is no arguable case raised by the proposed paragraphs 9 and 10 of the defendant's proposed Defence. They should not be permitted to be placed on the record. The plaintiff's case with respect to paragraph 11 of the defendant's proposed defence is a fortiori. If no case for qualified privilege can be made out in respect of publication to subscribers it certainly could not be made out with respect to sales on a news stand if, in fact, such sales took place.

136. The plaintiff also attacks the defendant's proposed pleading insofar as it seeks to rely upon a number of matters in mitigation of the plaintiff's damages if he is entitled to any.

139. He complains that paragraphs 12(a), (c) and (i) are liable to lead to confusion at trial. But Mr Robertson submits that the plaintiff's failure to complain of certain defamatory matters in the extract from the Barrons' article which contains the matters complained of goes to the issue of mitigation. It is unlikely that these allegations would complicate the interlocutory processes or embarrass the trial of this proceeding. Their efficacy can be argued at trial. I would not preclude the defendant from including them its Defence.

142. Similar comments can be made about paragraph 12(g).

145. Paragraph 12(h) refers to the truth of the defendant's imputations. As the defendant will not be permitted to rely upon any of the imputations it sought to plead paragraph 12(h) is now irrelevant. It should not be included in the Defence the defendant will be given leave to file.

148. The plaintiff complains of paragraph 12(j) as being irrelevant to the plaintiff's reputation. He relies upon a number of cases. It seems to me that this matter can be conveniently dealt with at trial without unduly complicating the case or widening the scope of interlocutory processes. I shall not preclude the defendant from including it in its Defence.

152. The plaintiff opposes the defendant being granted leave to deliver the Defence annexed to its summons. By his own summons of 5 November 2003 he seeks to have paragraph 11 of the defendant's Defence which is presently on the record, that is to say its defence of 14 November 2001, struck out on the ground that it does not disclose any arguable defence to his claim. This paragraph pleaded qualified privilege in a simpler form than does the document with which the Court is now concerned. In the circumstances it would be more convenient if the defendant were given leave to deliver a Defence to the plaintiff's second further amended statement of claim in the form of the Defence annexed to its summons of 27 October 2003 with paragraphs 8, 9, 10, 11 and 12(h) excised therefrom. Thus the Defence on the record will respond directly to the plaintiff's current statement of claim and there will be no need for any order on the plaintiff's summon. It can be dismissed.

156. Subject to any further submissions of the parties as to form and as to the issue of costs the Court will make the following orders:-

(A) On the defendant's summons of 27 October 2003:-

(1) that the defendant be granted leave to file a Defence to the plaintiff's second further amended statement of claim substantially in the form of annexure "A" to its said summons but with paragraphs 8, 9, 10, 11 and 12(h) thereof excised therefrom;

(2) that the defendant pay the plaintiff's costs of and incidental to this summons to be taxed.

(B) On the plaintiff's summons of 5 November 2003:-

(1) that the summons be dismissed;

(2) that the defendant pay the plaintiff's costs of and incidental to this summons to be taxed.

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[1] [2004] HCA 5; (2004) 78 ALJR 346; (2004) 204 ALR 193.

[2] Gutnick v Dow Jones (No 2) [2003] VSC 79.

[3] Gutnick v Dow Jones (No 2) [2003] VSC 79.

[4] [2000] VSCA 24; (2000) 1 VR 667.

[5] [1964] AC 234.

[8] [1996] EWCA Civ 1290; [1997] QB 123 at 138.

[9] Unreported WA Full Court 8 December 1997.

[10] (1998) 20 WAR 191 at 199.

[11] [1998] EWCA Civ 612; [1999] QB 241.

[13] [2000] VSCA 23; (2000) 1 VR 654 at 675.

[15] [1986] QB 1000.

[16] [1996] HCA 47; (1996) 185 CLR 183 at 228.

[17] [1834] EngR 363; (1834) 1 CM & R 181 at 193.

[18] [1908] HCA 31; (1908) 6 CLR 303; [1908] AC 390.

[19] [1910] HCA 67; (1910) 11 CLR 361.

[21] [2004] HCA 5.

[22] [1997] HCA 25; (1997) 189 CLR 520 at 570.

[23] Duncombe v Daniell [1837] EngR 84; (1837) 8 Car & P 222 [173 ER 470]; Adam v Ward [1917] AC 309; Chapman v Ellesmere (Lord) [1932] 2 KB 431; Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632; Lang v Willis [1934] HCA 51; (1934) 52 CLR 637; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 at 261.

[24] Per Gleeson CJ, Hayne and Heydon JJ at [12], quoting the Court of Appeal judgment, [2001] NSW CA 470 at [33].

[25] Howe v Lees [1910] HCA 67; (1910) 11 CLR 361 at 377.

[26] [1934] HCA 15; (1934) 50 CLR 632.

[28] Hebditch v MacIlwaine [1894]2 QB 54.