The applications listed before the court for argument in these defamation proceedings are:
1. The adequacy of the particulars set out in the plaintiff's Reply;
2. The plaintiff's challenge to answers to interrogatories by the defendant;
3. The defendant's challenge to interrogatories answered by the plaintiff;
4. The adequacy of discovery given by the plaintiff; and
5. Costs.
Before considering these issues, I first note the three surviving imputations which are:
1. That the plaintiff, by reason of permitting himself to be photographed with a mullet hairstyle, deserves to be the object of ridicule by the defendant;
2. That the plaintiff, by reason of his mullet hairstyle, has justifiably exposed himself to ridicule;
3. That the plaintiff is a ridiculous person because he wears a ridiculous mullet haircut.
Defences of justification and honest opinion are pleaded. The defence of honest opinion set out at paragraph 10 of the Amended Defence filed on 19 October 2017 is as follows:
"Honest opinion - section 31 of the Defamation Act
10. Further and in the alternative, the defendant says that, insofar and to the extent that it may be found that the first matter complained of, the second matter complained of and/or the third matter complained of (the matters complained of) were published of and concerning the plaintiff and were defamatory of him in their natural and ordinary meaning or as bearing one or more of the imputations pleaded in paragraphs 3, 5 and/or 7 of the FASOC (which is denied):
(a) each of the matters complained of was an expression of opinion, rather than a statement of fact;
(b) the opinion related to a matter of public interest; and
(c) the opinion was:
(i) based on proper material, being material that is true or substantially true; or
(ii) alternatively, based on material which included proper material, and represented an opinion which might reasonably be based on such of that material as was proper material,
and accordingly the defendant has complete defences in respect of the publication of the matters complained of pursuant to section 31 of the Defamation Act 2005 (NSW) and, to the extent necessary, pursuant to the corresponding provisions in the defamation legislation of each other Australian State and Territory (the Defamation Act)."
I note an earlier challenge to this defence on the basis that the plea should make specific reference to the meanings contended for by the plaintiff and to plead that proof of one of the three such meanings provides a complete defence means that the plea is defective, citing O'Brien v Australian Broadcasting Corporation [2017] NSWCA 338.
This judgment provides reasons for rulings which were not made in the course of the argument before me, namely:
1. whether the defendant must answer the plaintiff's interrogatories 5, 22 and 41.
2. the matters raised by the defendant regarding the Reply.
[2]
Answering interrogatories 5, 22 and 41
The defendant's objection described by Ms Cowden is firstly one of form (in that these identical interrogatories are addressed to the imputations and not the matter) and secondly on the basis that whether there was an intention to convey an imputation says nothing about the defence of honest opinion.
In Prowse v Harbour Radio Pty Ltd [2016] NSWSC 57 at [6], McCallum J referred with approval to the analysis of this issue by Hunt J in Lewis v Page (Supreme Court of New South Wales, 14 July 1989, unreported) which, since this decision is difficult to find, I set out in full:
"The eighth numbered interrogatory is directed to the defence of comment. The first paragraph asks the defendant whether she was "of the opinion that ...", and there follows each of the imputations pleaded by the plaintiffs - for example, whether the defendant was "of the opinion that ... the first plaintiff is unclean and disgusting in her conduct". This interrogatory misconceives the issues raised by this defence.
The defence of comment is not pleaded to the plaintiff's imputations: Bob Kay Real Estate Pty Ltd v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505 at 512. It is sufficient if the comment of the defendant is congruent with (in the sense of being not different in substance from) the imputation pleaded by the plaintiff; that is, the defendant's comment must convey the imputation which the plaintiff has pleaded: Lloyd v David Syme and Co Ltd (1985) 3 NSWLR 728 at 735-736. But the imputation is not itself the comment. The interrogatory here assumes that the imputation is the comment, and it is irrelevant for that reason.
The defendant cannot be required in the usual case to identify by way of particulars those statements in the matter complained of which he will contend at the trial to be expressions of opinion rather than statements of fact: Sims v Wran at 324. The reasoning for that proposition applies also to any interrogatory which seeks the same information.
But I see nothing wrong with an interrogatory directed to whether the defendant believed at the time of publication that the substance of the plaintiff's imputation was true. A person can only honestly hold or have a particular opinion (and that is the issue which arises under the Reply afforded by s 32(2) and s 33(2)) if he believes that the substance of that opinion is true. As the defendant's comment must convey the imputation which the plaintiff has pleaded, a belief in the substance of his opinion should also be a belief in the substance of the plaintiff's imputations.
An absence of a belief by the defendant in the truth of the substance of the plaintiff's imputation will therefore be some evidence that the defendant did not hold or have the opinion represented by the comment (the issue which the plaintiff must establish under the Reply), just as is the defendant's answer to an interrogatory that he did not intend to convey the plaintiff's imputation: Bickel v John Fairfax and Sons Ltd [1981] 2 NSWLR 474 at 485-486; Lloyd v David Syme and Co Ltd at 736.
Such an interrogatory is often directed to the defence of qualified privilege, although there the relevant belief is in relation to the meaning which the defendant intended to convey rather than that which was in fact conveyed: Wran v ABC at 250; Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 362.
The second paragraph of this interrogatory asks the defendant to state why he held such opinions. That falls with the first paragraph, for the same reason. Leave to ask it would be refused in any event because it could be relevant only to the reasonableness of the defendant's opinion and not to the honesty with which he held that opinion. It matters not whether the opinion be biased or prejudiced, as long as it is honestly held: Kemsley v Foot [1952] AC 345 at 357; Turner v MGM Pictures Ltd [1950] 1 All ER 449 at 461."
While decisions under the repealed legislation must be regarded with a degree of caution as the imputation(s), not the matter complained of, constituted the cause of action, that caution need not be applied here, as the defence of comment under the repealed legislation went to the matter complained of and not to any imputation distilled from it.
Mr Rasmussen referred to Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728, where an interrogatory in this form was administered. When answered in the negative, it had disastrous consequences for the defendant. As a decision of the Privy Council it constitutes stare decisis on such an issue, having regard to the similarity of the elements of the defence of comment under the repealed and current legislation, for the reasons noted in the previous paragraphs.
Ms Cowden, in reply, submits that the decisions of McCallum J and Hunt J are "preferable" (submissions, p. 11) to Lloyd v David Syme & Co Ltd, which really means that these decisions are inconsistent with the decisions of the Privy Council. I note that McCallum J refused a submission by Mr Rasmussen (who also appeared in Prowse v Harbour Radio Pty Ltd) that Hunt J "was wrong" (at [8]), but was not referred to Lloyd v David Syme & Co Ltd, so I do not have the benefit of her Honour's consideration of this Privy Council decision.
Faced with the Privy Council on one side and the decisions of defamation list judges of the Supreme Court on the other, I shall simply note that I do not regard Lloyd v David Syme & Co Ltd as endorsing the asking of interrogatories concerning the intention to convey as being necessary or even relevant to the defence of comment. The issue was the impact of the admission that there had been no intention to convey, not the form or even the relevance of the interrogatory. No submissions were made as to whether the interrogatory should have been asked in the first place. In those circumstances, I am satisfied that I can apply the reasoning of Hunt J and McCallum J and hold that these interrogatories need not be answered for the same reasons as those given by their Honours.
I have not required the defendant to answer the plaintiff's interrogatories 11, 12, 17, 28, 29, 34, 39, 47, 48 and 53. In this judgment I shall add a further order to the effect that the defendant is also excused from answering these interrogatories as well as those interrogatories.
[3]
The Reply
The particulars of absence of honest opinion as to paragraph 10(5)(a) of the defence, as set out in the Reply, are as follows:
1. The falsity of the imputation conveyed by the matter complained of to the knowledge of the defendant;
2. The defendant knew that the plaintiff's haircut was not an horrendous mullet and yet described it as such;
3. The defendant knew that the plaintiff was not a ridiculous person because of his haircut and yet described him as such;
4. The defendant knew that the plaintiff's hairstyle did not justify the ridicule and scorn that it subjected him to by publishing the matters complained of;
5. The defendant knew that Mr Nool made no comment about the plaintiff's haircut and yet purports to defend the matters as the honest opinion of Mr Nool;
6. The matters complained of were intended by the defendant to hold the plaintiff up to ridicule and contempt.
The particulars of absence of honest opinion as to paragraph 10(5)(b) of the defence, as set out in the Reply, are as follows:
1. The falsity of the imputations conveyed by the matters complained of to the knowledge of the defendant;
2. The defendant knew that Ms McKinnon did not believe that the plaintiff's haircut was not an horrendous mullet and yet permitted it to be described as such in its publication;
3. The defendant knew that Ms McKinnon did not believe that the plaintiff was a ridiculous person because of his haircut and yet permitted it to be described it as such in its publication;
4. The defendant knew that the plaintiff's hairstyle did not justify the ridicule and scorn that it subjected him to by publishing the matters complained of;
5. The defendant knew that Ms McKinnon intended the matters complained of to hold the plaintiff up to ridicule and contempt.
The plaintiff also states that the defences in paragraphs 10(5)(c) and 10(5)(d) "disclose no recognised defence in law" (at paragraph 4 of the Reply).
Particulars of these have been supplied as follows:
"1. The defendant knew that the plaintiff was not [sic] a 16-year-old man, that the plaintiff permit himself to be photographed, that the plaintiff's haircut was not ridiculous or horrendous and did not justify him being an object of ridicule by the defendant. No attempt to verify these facts was made by the defendants [sic].
2. The defendant knew that the plaintiff's haircut was not horrendous because it referred to (in the matters complained of at [11]) to 300 likes ([0]), numerous tribute posts across Facebook and Instagram, with photoshopped images of the plaintiff's haircut being hilarious ([11]), with examples of those images displayed (see [12]-[17]). Further, the defendant juxtaposed a photograph of a boy wearing a mullet with the title - 'worst ever yearbook haircuts' ([3a], [3b]) in order to deliberately convey the idea that the haircut was horrendous.
3. The defendant knew that the plaintiff's haircut was not ridiculous because it referred to (in the matters complained of at [11]) to numerous tribute posts across Facebook and Instagram, with photoshopped images of the plaintiff's haircut being hilarious, with examples of those images displayed (see [12]-[17]). Further, the defendant juxtaposed a photograph of a boy wearing a mullet with the title - 'worst ever yearbook haircuts' ([3a], [3b]) in order to deliberately convey the idea that the haircut was ridiculous.
4. Please see 2 and 3 above.
5. The defendant was reckless indifferent to the truth or falsity of this statement made in the matters complained of (which amounts to knowledge of falsity). The defendant made no attempt to verify the truth of the matters stated in the matters complained of including Mr Nool's alleged comments at [8], [9] and [10].
6. Please see 2 and 3 above. This also includes the words used in the matters such as 'Sydney man showcases ridiculous haircut', 'everyone meet Ziggy, a 16 year old man from Sydney who for some reason decided to cut his hair in a way that we simply cannot explain', 'we don't even have anything clever to say, there's just neigh way - I mean NO way I would ever consider rocking this mullet 'do.'
7. Generally, the plaintiff will allege at trial that the malice of the defendant or of the author of the matters complained of has warped their judgment and thus distorted their alleged opinion. It will also be alleged that the defendant and Ms McKinnon did not intend to convey the opinions expressed by the matter [sic] complained of as represented by the imputations and that those opinions were not honestly held by them."
Particulars similar to the present ("false to the knowledge of the defendant") were the subject of rulings by Levine J in Harrison v Jones [2000] NSWSC 814, which in turn referred to Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 and Waterhouse v Mirror Newspapers Ltd (1985) 1 NSWLR 81. Ms Cowden submitted that these particulars transgressed the requirements of proper pleading of malice in the same way.
Mr Rasmussen relied upon May v TCN Channel Nine Pty Ltd [2007] NSWSC 760, where Nicholas J said at [35] - [38]:
"[35] Under r 14.14(2)(b) a matter of defeasance must be specifically pleaded to the particular ground of defence to which it relates. Generally, in reply to a defence of comment the matter of defeasance must necessarily be directed to the state of mind of the commentator whose comment is relied upon by the defendant. Each person must be taken as having a mind of his own. Accordingly, if a plaintiff intends to show that the comment was not the opinion genuinely held by the commentator at the time of publication, it will be necessary to plead the facts and matters relied upon to establish that allegation (r 15.1(1), 15.31(1)(b)). Where, as in this case, the defendants plead the comments of a number of commentators, the state of mind of each commentator is put in issue with the consequence that the facts and matters relevant to each person's state of mind must be specified. As the issue in respect of each commentator requires separate consideration, the plaintiff is obliged to identify what is relied upon in each case to inform the defendant of the case to be met. Anything not directed to establishing that the opinion expressed in the publication did not honestly represent what the commentator believed should be struck out (Branson para 9).
[36] For the purpose of deciding the present application it is unnecessary to deal separately with each of the allegations in paras 2(a) - (e) and the particulars as pleaded in the reply. In my opinion it is self-evident that the pleader has failed to comply with the requirements of r 14.14(2)(b) in that no matter of defeasance has been specifically pleaded to each comment defence raised in the four defences. Also evident is the failure to comply with the requirements of r 15.1(1) and 15.31(1)(b) to clearly link the particulars to a specific allegation of a ground of defeasance which, in turn, is directed to a particular commentator or commentators.
[37] Taken overall, in my opinion, the pleading is productive of confusion to a degree which is likely to cause embarrassment or delay in the proceedings. I therefore propose to order that paras 2(a) - (e) and the particulars be struck out under r 14.28(1), with liberty to replead.
[38] It is unnecessary to rule on the objections taken to the sufficiency and/or relevance of the particulars in paras (a)(i) - (xv) as it is likely that an appropriately amended reply will include differently pleaded particulars. Nevertheless, in my opinion many of the objections had much force. It would be prudent for the draftsman of any amended reply to take into account the observations of Hunt, J in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 and Waterhouse v Mirror Newspapers Ltd (1985) 1 NSWLR 81, and of Levine, J in Harrigan."
However, the observations of Nicholas J in this regard favour the defendant, not the plaintiff, as his Honour's reference (at [38]) to the three cases relied upon by the defendant in this application makes clear. As Nicholas J notes, the facts and matters relevant to the state of mind must be specified, rather than the mere assertion that the defendant "knew" that the haircut was neither ridiculous nor horrendous. The closest the pleading gets to this are in the references to asserted knowledge of facts (such as the plaintiff's age and what Mr Nool said) and the number of "tribute posts" to the photo-shopped photographs (although how this indicates that the defendant knew these "tribute posts" meant the plaintiff's haircut was not ridiculous is completely unexplained). These particulars do not tell the defendant the case it has to meet and, rather than deal with them one by one, they should all be struck out with leave to replead.
In the course of argument Mr Rasmussen appeared to suggest that the malice lay in turning internet posts into what the defendant's journalists knew was an unkind non-story pillorying a teenager snapped unawares at a party, despite the likelihood that any teenager could be impacted by such public ridicule. However, that is not what these particulars say.
The redrafted particulars should also specify, in the manner described by Nicholas J in May v TCN Channel Nine Pty Ltd, who had the knowledge in question, as well as identifying what that knowledge was and how that meant that the relevant statements in the matter complained of were false, or reckless to the requisite degree, or otherwise evidence of malice.
The particulars of defeasance of honest opinion in the Reply are struck out with leave to replead. The particulars at paragraph 5(a) are struck out for the same reason.
[4]
Orders
1. The defendant is not required to answer interrogatories 5, 22 and 41.
2. Particulars of the Reply struck out with leave to replead.
[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: 03 May 2018