Solicitors:
Defendant: Alexander Law
File Number(s): 2020/00029704
[3]
Judgment
The plaintiff brings proceedings for defamation by statement of claim filed on 29 January 2020. The matter complained of is a statement made by the defendant in the course of a television interview on Sky News on 29 January 2019 and is as follows:
"2 The plaintiff by statement of claim as amended on 22 April 2020 brings proceedings for defamation for statements made by the defendant in the course of a television interview of the defendant by Graham Richardson on Sky News on 29 January 2019. In the course of that interview, he was asked about the circumstances in which he had unfairly dismissed staff and, specifically, whether he had sacked up to 11 people in the three years just past. The defendant replied:
"No, well - there's five perhaps that I dismissed for breach of trust; there were four that were on probation or casual and I let them go after I completed the project I had set for them; the others were - er - um resignations...so whoever said that, that's a fallacy and as you state, I certainly must have some enemies somewhere"."
These proceedings have been difficult to case manage by reason of the combative attitudes of the plaintiff and defendant, each of whom has been self-represented. After I made observations as to the inadequacies of the statement of claim in my judgment of 15 April 2021 (Kelly v Burston (District Court (NSW), 15 April 2021, unrep), the plaintiff served a document headed "further amended statement of claim". That document is deficient in many respects, and this has led to the current application to strike out the imputations pleaded as well as paragraphs 11 - 22, which contain material which purports to answer questions of malice.
The errors of pleading in the statement of claim are not difficult to understand. The plaintiff has not been named, and the matter complained of is a group libel, in that he claims to be identified by the defendant's reference, in the matter complained of, to 5 employees being sacked for breach of trust. All that is required is the pleading of imputations appropriate to group libel where one or more of a group is referred to (McCormick v John Fairfax & Sons (1989) 16 NSWLR 485; Morten Christiansen v Fairfax Media Publications Pty Ltd & Ors [2012] NSWSC 1258) and for particulars of identification setting out the names and addresses of the persons who identified the plaintiff and the information those persons had which led them to make that identification. Instead, the plaintiff has provided an elaborate series of imputations, both in the natural and ordinary meaning and by way of innuendo, pleading imputations of guilt (which are impermissible) and failing to identify in proper form the persons who saw the matter complained of and identified him as a result.
I heard argument and made orders as set out below. I provide the following brief reasons for my orders.
I set out the pleading in its current form (paragraphs 13A-15), with notations of the problems:
"13A The Defendant's highlighted statement to Richardson, (including said republication and consequential continuous republication in their natural and ordinary meaning meant and were understood to mean
(a)that the Defendant had dispensed with the services of 11 members of his parliamentary staff (staffers) over the course of 3 years; and breach of trust; and
(b)that perhaps five(5) (nearly half) of those elven [11] staffers had been dismissed for breach of thrust ; and
(c)that those staffers dismissed for breach of trust had either
(i) failed to keep a confidence, or confidences, reposed in them; or
(ii) were otherwise dishonest; and
(d)were unfit to hold a position of trust; and
(e) were not fit to be employed in a position of confidence; and
(f) could not be relied upon to keep a confidence; and
(g) were unfit to hold a position in a parliamentary office; and
(h) were untrustworthy persons unfit for political employment; and
(i) were disgraceful persons not fit for employment by government, including the Commonwealth
13B Further and alternatively to the imputations pleaded by paragraph 13A (c) - |i) that there were reasonable grounds for suspecting those staffers dismissed for breach of trust
(a) either
(i) failed to keep a confidence or confidences reposed in them: or
(ii)were otherwise dishonest: and
(b) were unfit to hold a position of trust; and
(c) were not fit to be employed in a position of confidence: and
(d) could not be relied upon to keep a confidence; and
(e) were unfit to hold a position in a parliamentary office: and
(f)were untrustworthy persons unfit for political employment: and
(g)were disgraceful persons not fit for employment by government, including the Commonwealth"
These suffer from the following deficiencies:
1. These are imputations for all the members of the group, not the plaintiff. Only the plaintiff brings these proceedings.
2. The plaintiff cannot plead imputations of guilt where he is one of a group where only some of those members of the group could be the subject of the imputations.
This paragraph should be struck out for these reasons.
The next paragraph in the pleading is as follows:
"14 By the highlighted statement pleaded by paragraph 6 of this SoC the Defendant
(a) established or described one broad class of persons who had been terminated and three [3] discreet sub-classes of former staffers, namely: .
(i) A sub-class of "perhaps five" [5] of 11 former employees dismissed for breach of trust;
and
(ii) A sub-class of four [4] who were "let go on completion of casual engagemerits"; and
(iii) A sub-class of 2 who resigned for unspecified reasons.
(b) established or described a ratio of persons dismissed for breach of trust of 5:11 of those who were no longer employed and thereby asserted almost 50% of those let go had been dismissed for breach of trust; and
(c) failed to exclude the Plaintiff from the category of staffers dismissed for breach of trust;
and
(d) asserted breach of trust as a fact, not opinion."
This appears to be an attempt to plead true innuendo. The fact that the plaintiff referred to a group of persons does not need to be pleaded and whether the statement is asserted to be a fact or opinion is irrelevant. If what is attempted to be said is that there is some fact or facts relied upon for the following true innuendo pleading, that should be specified and the persons knowing that fact or facts identified. Mathematical calculations are irrelevant.
This paragraph should be struck out.
The next paragraph is a further attempt at a true innuendo:
"True innuendo
15 By reason of the facts pleaded by paragraph 14 of this SoC, the Defendant's said highlighted statement when read in the light of the following extrinsic facts and which facts were not referred to by the Defendant was a true innuendo of and concerning the Plaintiff because and in fact
(a)The Plaintiff was one of the eleven [11] staffers referred to by Richardson whose service in the parliamentary office of the Defendant was dispensed with
PARTICULARS
The other persons known to the Plaintiff whose services in the office of the Defendant were dispensed with were:
-Diana Allen
-Frank Salter
-Nathan Ashby
-Peter Breen
-Brian Tucker
-Mary-Ann Martinek
-Wendy Leach
(b) the Plaintiffs identity and the fact of his employment as a staffer in the Defendant's office was, naturally, known among his co-workers within Senator Burston's parliamentary office and also known among numerous other people holding support positions or who were incumbent as elected representatives at Parliament House.
Particulars
In compliance with UCPR 15.19 the persons or classes of persons referred to were or included:
A. The Plaintiffs co-workers within Senator Burston's office and they were and included:
B. -Diana Allen -Frank Salter
-Nathan Ashby
-Peter Breen
-Brian Tucker
-Mary-Ann Martinek
-Wendy Leach
-Belinda Johnson
C. Other staffers in other senators' and representatives' offices and they were and included Richard Howard, Boston White, James Ashby, Sean B6l|, Sean Butler, Pat Hancock, Cameron Amos, Don Bundesen.
D. Elected representatives (Senators and Members} with whom the Plaintiff was in frequent or regular contact and they were and included Senator Hanson, Senator Lambie, Senator Leyonhjelm, Senator Anning, Senator Roberts, Bob Katter MP, Dan Tehan MP, George Christensen MP, Darren Chester MP, Paul Fletcher MP
E. Other constituents and supporters of Senator Burston and they were and Included David Ogilvie, David Paulke, Shona Hingston, David Adler, Darren Huger, Kevin Kennedy, Elizabeth Sady, Helen Jones, Freddie Martin.
(c) That the Plaintiff's services had been dispensed with was a fact naturally known among his co-workers within Senator Burston's parliamentary office and also known among people holding support positions or who were incumbent as elected representative as Parliament House.
(d) The reason for the termination of the Plaintiff's services.
(i) was not known or publicly acknowledged among his co-workers within Senator Burston's office or among people holding support positions or who were incumbent as elected representatives at Parliament House,
(ii) was stated In his termination letter as a result of "breach of trust" as a result of an allegation he had "leaked information to a journalist" and that conduct was unauthorised whereas in fact the dissemination of the subject information was routine."
What needs to be set out are the particulars of identification for the plaintiff and the names and addresses of the persons to whom these were known: Lazarus v Deutsche-Lufthansa AG (1985) 1 NSWLR 188. Crucially, these persons must have seen the matter complained of and identified the plaintiff.
At present, the plaintiff is only able to identify one person who saw the matter complained of and identified him. That is a start, but even this is not enough unless proper particulars of identification are provided.
The defendant also objects to the particulars at paragraphs 11 - 22 (pages 9 - 11 of the statement of claim) on the following bases:
1. Paragraphs 11 and 12 simply repeat allegations about publication and republication, for no apparent reason.
2. Paragraph 13 contains irrelevant material about the Federal Department of Finance and an article in the Newcastle Herald. It appears this is an attempt to plead malice. If so, it must be pleaded in a Reply as a separate document.
3. Paragraphs 14 - 18 are similarly misconceived as being particulars of malice (in relation to Comcare and the Australian Federal Police).
4. Paragraph 19 states that the defendant has "gathered other material that targets the plaintiff". What does this mean? Is this a claim of prior hostility and ill-will for the purposes of malice? If so, it belongs in the Reply, with full particularisation.
5. Paragraphs 20 - 22 appear to include a claim for lost earnings. If so, these must be particularised as special damage.
The order Mr Olson sought was for the summary dismissal of the statement of claim on the basis of the hopelessness of the pleadings (written submissions, paragraphs 27 - 33). I indicated that I would be reluctant to dismiss proceedings summarily on the first challenge to the pleadings, particularly since, as Mr Olson acknowledged, the challenge to the pleadings was brought very late. The fact that the plaintiff is a litigant in person should also be given some weight.
However, as is set out in my earlier judgment, these proceedings have an unacceptable history of hopeless pleadings and combative argument. While I am not yet prepared to strike out the plaintiff's claim, continued inability to plead the claim with simplicity and clarity may result in this drastic step.
[4]
Order:
1. The document headed "Further Amended Statement of Claim" date 21 April 2021 is struck out with leave to replead.
2. The plaintiff is to file the following documents in 21days :
1. Amended Statement of Claim giving proper particulars of identification, pleading implication of appropriate for a group of liable (including any pleading of innuendo), and deleting particulars of malice
2. A Reply particularising malice.
1. Plaintiff is to pay the defendant's cost of the application.
2. Matter stood over to the Defamation List on Thursday 21 October 2021 at 9am.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 June 2022