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Cases Cited: Edwards v Nine Network [2024] FCA 422
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52
Li v Liao [2025] NSWSC 168
Massoud v Nationwide News Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150
Onakoya v The Sydney Children’s Hospital Network (Randwick & Westmead) [2024] NSWSC 1004
Whelan v John Fairfax & Sons (1988) 12 NSWLR 148

Category: Procedural rulings

Parties: Matthew Onakoya (First Plaintiff)
Olamide Onakoya (Second Plaintiff)
The Sydney Children’s Hospital Network (Defendant)

Representation: Counsel:
R Rasmussen (First and Second Plaintiff)
D Sibtain SC (Defendant)
Solicitors:
Bellissimo Lawyers (First and Second Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s): 2023/347867

Publication restriction: N/A

JUDGMENT

1. HIS HONOUR: The first and second plaintiffs are husband and wife. They sue the defendant, The Sydney Children’s Hospital Network, for what is alleged to be defamation. The Court is, in this judgment, dealing with the filing of an Amended Statement of Claim.

2. On 16 August 2024, Campbell J struck out the Proposed Amended Statement of Claim filed in the proceedings on 22 June 2023 and directed the plaintiffs to file a Further Amended Statement of Claim in conformity with the rules.

3. Purportedly pursuant to the directions of the Court in the above judgment, the plaintiffs seek to file what is now termed the “Proposed Further Amended Statement of Claim”, which was emailed to the Court on 11 March 2025. The defendant opposes the grant of leave on the basis of deficiencies in the proposed pleading.

4. The defendant does not claim prejudice arising from the timing of the proposed pleading, notwithstanding that it is almost six years after the publication of the material. Nor does the defendant, at this stage, seek to strike out the proceedings.

5. The allegedly defamatory material was published in an unusual context for defamation proceedings. On 30 May 2019, the plaintiffs took their three-month old infant daughter to the hospital, being the defendant operating at Westmead, and the general medical resident who attended on the child referred the child to the Child Protection Unit.

6. On 31 May 2019, the Registrar and social worker, in consultation with a Child Protection Unit Staff Specialist, examined the child.

7. As a consequence of the examination on 31 May 2019, a report was issued on 11 June 2019 over the signature of the staff specialist who was, and I assume still is, a Forensic Paediatrician at the Child Protection Unit (hereinafter CPU).

8. As one would expect, the report expresses views. The views relate to the existence of subdural haematomas which were described as “highly concerning for a past acceleration-deceleration (shaking) injury”.

9. A further report was issued on 14 August 2019, which was provided in answer to questions from caseworkers at the Family and Community Services (now known as the Department of Communities and Justice) and the Joint Child Protection Response Program. The report expressed the view that the haemorrhages that existed on the child “were highly suspicious for afflicted injury due to acceleration-deceleration (shaking) injury”. This was expressed at a number of points in the report.

10. Further, the report suggested that the injuries to the child could be “explained by a shaking injury having occurred on 12 May 2019 at the time that the symptoms occurred as reported by … [her] parents”. It is unnecessary to deal with the full extent of each of the reports.

11. As noted in the reasons for judgment of Campbell J, [1] until recently the plaintiffs were unrepresented. They are now represented by a solicitor and barrister. Understandably, in those circumstances, the plaintiffs seek to amend their claim. The claim has been through a number of iterations before that which came before the Court at the hearing on 25 March 2025.

12. The defendant relies upon nine bases for the proposition that the Court should not grant leave to file the proposed pleading:

(i) capacity; (ii) the imputations are or some of them are no different in substance; (iii) the imputations are contradictory; (iv) the pleadings are embarrassing and vexatious; (v) that paragraph 32 relating to the failure to apologise prior to the publication of the impugned material is not capable, as pleaded, of constituting aggravation; (vi) failure to particularise the publication, particularly in relation to republication; and (vii) that much of the proposed pleading is irrelevant to the cause of action and not material facts.

13. Because of the stage reached in the proceedings, a defence has yet to be filed. As a consequence, issues such as qualified or absolute privilege, justification, triviality and/or serious harm are yet to be raised. Some of those defences, if pleaded, may form the basis for preliminary hearing and peremptory orders, but much will depend upon the defences that are pleaded.

Capacity

14. Any application to strike out involves the applicant in satisfying a heavy burden. It is insufficient, in relation to imputations said to arise from defamatory material, for a judicial officer dealing with the striking out of the imputation to be satisfied that a different imputation or no imputation arises. It is necessary to determine the strike out application on the basis of whether the material that has been published was capable of giving rise to the defamatory imputation that has been alleged. [2]

15. While, pursuant to the provisions of s 8 of the Defamation Act 2005 (NSW), it is the publication from which the cause of action arises, such cause of action does not arise unless there is a defamatory imputation. In such circumstances, the content of the defamatory imputation is a material fact to be pleaded in proceedings.

16. If the material fact pleaded cannot arise from the publication that contains it, the imputation is to be struck out. Nevertheless, such a step is not undertaken lightly. In Favell, supra, the High Court said:

“Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.” [3]

17. The question is whether the material published is capable of giving rise to the defamatory imputation alleged. Where the material might possibly give rise to a defamatory imputation, which is not the defamatory imputation alleged in the pleading, then the proceeding cannot be struck out, but the pleading or that part of it that does not arise and cannot arise from the publication, should be. Thus, the pleading of an imputation is struck out only when the imputation is not available from the published material and in circumstances where it would not be open to a jury or other fact finder to determine that the imputation arises.

18. The terms of the reports that have been impugned as defamatory state the nature of the injuries to the child and also state that the plaintiffs could not recall any injury to the child or to her head. Further, the reports, and for this preliminary purpose I do not differentiate between each of them, refer to the child’s presentation as a presentation “with unexplained chronic bilateral subdural haemorrhages”, which was “highly concerning for a past inflicted (shaking) injury to her head”. It also states the typical symptoms of a shaking injury “apnea [stopping breathing] and floppiness” being reported as symptoms suffered by the child.

19. No conclusion is reached in the reports that the parents inflicted the injury. Nevertheless, imputations arise from the published material. The Court does not, at this stage, determine that such imputations give rise to a cause of action.

20. In its ordinary and natural meaning conveyed to the ordinary reasonable reader, it cannot be said that the June report gives rise to imputations that are capable of arising that the first plaintiff caused the serious physical harm and/or injury to the child, either from a shaking injury or otherwise. Similarly, it cannot be said that such an imputation arises in relation to the second plaintiff.

21. The August report is in the same situation.

22. The Court reiterates that the above finding does not suggest that no imputation arises that may be defamatory. Nor does the Court here conclude or suggest that imputations do not arise from either or both the June or August report in relation to each of the first and/or second plaintiff.

23. As the Court has previously stated, material may be defamatory merely because it alleges that a person is charged with an offence or is suspected of an offence (in this case shaking and injuring the child). [4] Such an imputation is not strictly an imputation that the person has committed the act. It is an imputation that the person has behaved in a manner that has caused the person to be charged and/or caused the person to be suspected. [5]

24. An allegation that a person has so conducted herself or himself so as to warrant a suspicion may be defamatory. Moreover, in the context of these publications, where the reporting medical practitioners have sought an explanation for the injuries, which has not been given, there may be an allegation that the plaintiff has lied or not been wholly truthful in relation to their conduct.

25. In other words, there may be imputations that arise from the publications, but they are not imputations that allege either the first or second plaintiff physically harmed the child, shook the child or caused the injury. The report only goes so far as to say that, in the absence of another explanation, such was a reasonable conclusion and may have occurred.

26. The defendant’s objection on the basis of capacity is upheld.

Imputations that are not different in substance

27. The defendant complains that the imputations pleaded at paragraph 23(B) and (C) do not differ in substance from that pleaded at sub-paragraph (A). Similar objections are taken in relation to imputations at (E) and (F) compared to (D); and (H) and (I) compared to (G). Further, the necessary changes being made, the equivalent objections are taken in relation to the similar imputations in paragraphs 26 and 27 of the proposed pleading. It is said that in relation to each imputation, the sting is the causing of serious physical harm to the child.

28. The pleaded imputations differ. The question is whether they differ in substance. The imputation at (A) is an imputation that the first plaintiff caused serious physical harm to the child. The imputation at (B) is that the first plaintiff caused a shaking injury to the child’s head; and the imputation at (C) is that the first plaintiff physically harmed the child by shaking her, resulting in a brain injury. Imputations (D), (E) and (F) are the same imputations except in relation to the second plaintiff. Imputations (G), (H) and (I) are the same imputations save that they plead the imputation as against both the plaintiffs collectively.

29. There is a difference between causing “serious physical harm”, “causing a shaking injury” and “physically harmed someone by shaking resulting in a brain injury”, even when the shaking injury was caused to the head. Nevertheless, in the context of the material which contains the statements, there does not seem to be any allegation of any other injury or serious physical harm other than the injuries caused to the brain or head by shaking.

30. I am not prepared to determine, on a preliminary basis, that each of the imputations is no different in substance. Given that the Court is, on account of the capacity issues with which these reasons have already dealt, to make orders for the repleading of any Statement of Claim, to repeat in three different subsections that which amounts to one allegation may have an effect on costs and the order that might otherwise be made by the Court. At this preliminary stage, the Court rejects the objection taken as to there being no difference in substance between certain imputations pleaded.

Contradictory imputations

31. The defendant submits that the pleading of the imputations in the manner currently proposed is inconsistent. The inconsistency arises because the pleading alleges that each report imputes that the first plaintiff injured the child; that the second plaintiff injured the child; and that both first and second plaintiff injured the child.

32. The underlying assumption is that the three allegations are inconsistent. More to the point, the defendant relies upon the requirement that it is for the Court to determine that which is conveyed by the defamatory material and its ultimate task will be to select the single meaning conveyed by the publication. [6]

33. As was made clear by the Court of Appeal in Massoud, supra, a publication may give rise to more than one imputation. The same comment or statement in a publication may give rise to imputations against more than one person. Thus, if a publication said, “X is a murderer” and there was a Mr and Mrs X, then the imputation may well be an imputation against each of them. The Court of Appeal said:

“57 The ‘single meaning rule’ is rather more nuanced than the respondents contended. It certainly does not mean that a plaintiff is precluded from alleging that a publication conveys more than one imputation. As was noted in the passage from Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; [2019] FCAFC 125 at [33] to which Mr Massoud referred in his submission in reply, ‘An applicant may allege that a published matter conveys two or more distinct defamatory imputations, and may allege imputations in the alternative (Federal Court Rules, r 16.06), and subject to any defences, will succeed if one or more of those imputations is found to be conveyed.’ The position is identical in the District Court, save that the ‘applicant’ is a plaintiff, the general rule authorising inconsistent allegations of fact in the alternative comparable to r 16.06 is UCPR r 14.18 and in addition two or more imputations must not be alleged to have been made by the same publication unless they differ in substance: UCPR r 14.30(3). This is on all fours with the description in D Price, K Duodu and N Cain, Defamation: Law, Procedure and Practice (Sweet & Maxwell, 4th ed 2010) at [2-14]:

‘The single meaning rule

It is often said that there can be only one natural and ordinary meaning and, where appropriate, one innuendo meaning. This is an oversimplification. To say of C that he is a thief, adulterer and drunk does not mean that C can only select one allegation in respect of which to complain, although he may choose to do so. A newspaper or magazine article, for example, can level a number of allegations against a claimant which will be listed in his particulars of claim. The effect of the ‘single meaning rule’ is that where there are legitimate but contradictory interpretations of the words, the court cannot recognise the reality, which is that a number of reasonable readers would have interpreted the words in one way and the remainder in the alternative. The court must determine one ‘correct’ meaning out of the conflicting interpretations.’”

34. In this case, given that each plaintiff was interviewed, and each plaintiff may, in accordance with reports, have inflicted the injury, the plaintiffs are entitled to allege that the imputations arise against each of them. There is a difference between the first plaintiff inflicting the injury, the second plaintiff inflicting the injury and both of them inflicting it together. There is indeed a fourth alternative which is that each of the first and second plaintiffs inflicted injuries on different occasions, but such fourth alternative is encompassed by an imputation against each of the first and second plaintiff.

35. The imputations that have been pleaded are not contradictory and the publications may give rise to imputations against each of the plaintiffs separately and/or the plaintiffs together. The single meaning rule is not offended by the manner in which these imputations are pleaded. This objection is rejected.

Embarrassing and vexatious pleadings

36. The defendant objects to paragraphs 28 and 29. In essence, the defendant submits that the pleadings allege a republication and damage from republication without pleading same.

37. Much of the material with which the Court is required to deal in these objections has a degree of artificiality. The artificiality is occasioned not by the submission but by the circumstance that these issues are being agitated at a point in time before the defences have been raised and before the Court is required to deal with duties imposed upon medical staff and/or other persons in relation to the protection of children.

38. Paragraphs 28 and 29 deal with the circumstance that as a consequence of the June report and/or the August report, members of the Central Metropolitan Joint Child Protection Response Program were caused to report, which in turn, caused the plaintiffs to be listed as “Persons Causing Harm” on the database of the Department of Communities and Justice.

39. The listing of the plaintiffs occurred on and from August 2019. The allegation in the pleading is that the defendant hospital is responsible for the republication because it is the “natural and probable consequence” of the reports.

40. There are a number of difficulties with such a pleading. First, it is not clear that the listing is a “republication” of the sense or substance of the reports prepared by the medical practitioners employed by the defendant. Further, the plaintiffs seem to accept that the entry of their names onto the database followed an assessment by a party independent of the defendants. So much seems to be the subject of pleading.

41. Over and above the foregoing, the plaintiffs do not plead how it is said the plaintiffs are liable, in accordance with established principle, for the republication other than the general comment that it is “the natural and probable consequence” of the original publication.

42. While there are authorities dealing expressly and specifically with defamation proceedings, in this respect defamation reflects a particular of a far more general rule. It is a fundamental of procedural fairness that each party must know the case that is required to be met or to advance and has a reasonable opportunity to prepare and to present its own case.

43. In the case of pleadings, this requires that the pleading contains allegations of material facts sufficient to constitute a cause of action. However, even if a cause of action has been disclosed by the pleading, the pleading can be struck out if it is embarrassing. [7] In the context of the Uniform Civil Procedure Rules (UCPR) embarrassment includes pleading of matters at a general level such that the opposing party is not in a position to know precisely how the allegation is put and how it may be met.

44. The Court is satisfied that the pleadings in paragraphs 28 and 29 of the proposed pleading are such that the defendant would not know how it is alleged it is liable for the republication; whether it is an allegation of republication; or, whether it is simply a pleading of damage caused by the original publication. The objection to these paragraphs is upheld and the paragraphs are struck out.

Aggravated damages

45. Next, the defendant objects to the particulars upon which it is said the plaintiff relies for aggravated damages. The Court emphasises that the remedy sought by the plaintiffs is “damages for defamation”. While the remedy includes aggravated compensatory damages, there is no allegation or attempt to raise a cause of action in negligence.

46. Yet the allegations at paragraph 32(I)-(VIII), if they be relevant to any claim, seem to be relevant to a claim, were it to be made, in negligence. The foregoing does not encourage any such claim.

47. The defendant submits that “pre-publication conduct that is not relevant to the circumstances of publication … is not capable of constituting a particular of aggravation”. In so submitting, the defendant relies on Edwards. [8]

48. It is unnecessary for the Court, as presently constituted, to determine whether “prepublication conduct by a publisher is generally not capable of justifying aggravated damages”, notwithstanding the dicta upon which Wigney J relied in Edwards. His Honour went on to deal with those matters that had a “nexus” with the publication. Such a qualification may be sufficient to support such a general principle.

49. However, there are abundant circumstances where pre-publication conduct can amount to aggravation. Wigney J refers to a failure to make reasonable enquiry. But there are circumstances which would show, for example, a motive that is malicious or part of a concerted campaign. It may be that in those circumstances the motive is current at the time of publication or existed between the time of publication and the conclusion of the trial. Given that there is no need to deal with the issue explicitly, it is unnecessary to determine on some theoretical basis whether some pre-publication conduct could be relevant to the determination of aggravated damages.

50. The pleaded particulars or circumstances (other than paragraph 32(IX)) are circumstances that could not give rise, without more, to aggravation and the objection in this respect is upheld.

Particulars of publication

51. Lastly, the defendant objects to the pleading that is contained under the heading “particulars of publication” in the proposed pleading. It is unclear to what these particulars relate.

52. It may be that they are particulars of the republication upon which the plaintiff relies but that is pure conjecture. Further, it is unclear whether it is an allegation adding to the damage caused by the June and August reports or whether it is some kind of separate cause of action, or a cause of action based on re-publication otherwise than that which may already be pleaded. For the reasons already given relating to embarrassment, this passage is unacceptable and would be struck out. The objection by the defendant, in this respect, is upheld.

Irrelevant pleadings

53. Lastly, the defendant objects to that which it describes as irrelevant pleading. The objection is taken to that which may otherwise be described as background, such as other medical examinations performed at the hospital and the results of such and other like material.

54. While it may be that the pleadings in this category are not material facts, I do not consider that the paragraphs should be struck out or not permitted to be pleaded. There are special rules relating to defamation pleadings, but in this area the general principles apply. First the pleadings should be brief. Secondly, the parties may plead facts, not evidence from which the facts may be drawn. In some respects, the irrelevant material may amount to evidence, e.g. that there were no signs of retinal damage, no signs of spinal injury and the previous discharges from hospital. But it would be difficult at this stage to conclude the pleadings were irrelevant.

55. The requirement to plead material facts and all particulars is not a prohibition on other arguably relevant facts being pleaded or particularised, as long as the facts so pleaded do not contravene some other pleading requirement. I do not consider that these paragraphs would form the basis for disallowing the proposed pleading and the defendant’s objection in this respect is rejected.

Conclusion

56. For the reasons already given, the Court will not allow leave to file the proposed pleading upon which the plaintiffs rely. The conclusion does not dismiss the proceedings. Nor does it prevent the plaintiffs from filing a pleading which accords with the UCPR and pleads properly the material facts upon which they rely. The Court will allow further time in which to file such a pleading.

57. The Court makes the following orders:

58. Leave to file the Proposed Further Amended Statement of Claim refused.

59. Direct that the plaintiffs file and serve a Second Proposed Amended Statement of Claim by 5pm, 4 July 2025.

60. The plaintiffs shall pay fifty percent of the defendant’s costs of and incidental to the hearings on 29 November 2024 and 25 March 2025.

**********

Endnotes

Onakoya v The Sydney Children’s Hospital Network (Randwick & Westmead) [2024] NSWSC 1004.

Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52 at [6].

Ibid at [6].

Li v Liao [2025] NSWSC 168.

Ibid, citing Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 160 (Hunt J).

Massoud v Nationwide News Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 at [57].

Uniform Civil Procedure Rules 2005, r 14.28(1)(b).

Edwards v Nine Network Australia Pty Ltd (No 5) [2024] FCA 422 at [414]-[415].

Amendments

17 June 2026

Coversheet - added (No 2) to case name.